Powow River National Bank v. Abbott

Hammond, J. It is plain that under the adjudications made by this court in cases which have arisen under this statute these plaintiffs are not entitled to the relief which they seek. Waltham Bank v. Wright, 8 Allen, 121. Jenney v. Wilcox, 9 Allen, 245. Wells v. Child, 12 Allen, 333. Sykes v. Meacham, 103 Mass. 285. They knew of the death of Weeks, and of the appointment of the administrator of his estate. They must be assumed to have known that, whether the estate was declared insolvent or not, their claims would be barred, unless within the statutory period of two years they commenced legal proceedings before the proper tribunal to enforce them, and that the administrator had no power to waive for the estate the benefit of the statute. They knew all the facts respecting their rights. No fraud or accident is alleged; and, while there is a vague allegation of mistake, there is nothing to show the nature of the mistake, and, as against a special demurrer, that the bill fails to allege with sufficient particularity in what the mistake consisted, the allegation must be held to be insufficient. [341] The delay was not caused by their ignorance of a fact which they did not suspect existed and which they had reasonable ground to believe did not exist, as was the case in Morey v. American Loan & Trust Co. 149 Mass. 253, and Ewing v. King, 169 Mass. 97, cases upon which the plaintiffs rely but which in this material respect are distinguishable from this. Nor was the delay agreed to by all parties interested in the estate, including heirs and creditors, as in Knight v. Cunningham, 160 Mass. 580. The plain, simple case shown by the bill is that the plaintiffs, knowing fully their rights and the time within which they must assert them by legal proceedings, relied upon certain statements of the administrator, about whose good faith, however, we do not understand any question is made, and allowed the time to go by until it was too late. The case must stand in the same class with those named in the first paragraph of this opinion. The demurrer must be sustained. Bill dismissed. Justices Knowlton, Morton and Barker dissent from this opinion.