Ryan v. Lyon

Braley, J. The demurrer was rightly overruled. By R. L. c. 141, §' 10, a creditor whose claim has not been prosecuted within two years after an executor or administrator has published notice of his appointment under § 9, may have relief in equity for the amount against the estate, if found not chargeable with culpable neglect in failing to enforce it before the statutory bar had been established. Ewing v. King, 169 Mass. 97. Powow River National Bank v. Abbott, 179 Mass. 336. McMahon v. Miller, 192 Mass. 241. It is averred in the bill of complaint that the defendant’s testator, a constable qualified to serve civil process, attached in an action against them certain personal property of the plaintiffs, which was released upon their depositing with him sufficient money to cover the amount of damages demanded in the writ. The money by R. L. c. 167, § 124, having been held to await the result of the litigation, the termination of the action by the entry of neither party dissolved the attachment, and it was payable to the plaintiffs on demand. Radclyffe v. Barton, 154 Mass. 157, 158. But pending the proceedings the attaching officer died testate, and the defendant had been appointed executrix, and only eight days appear to have remained after the disposition of the case before the plaintiffs’ claim would be barred. A demand by the plaintiffs was necessary before an action could be begun, and although promptly made the defendant referred them to her counsel, and to a surety company which had become surety on the official bond of her testator. Weston v. Ames, 10 Met. 244. King v. Rice, 12 [420] Cush. 161, 163. The time within which an action could have been begun elapsed before any definite statement was received from the company, which declined to recognize any liability upon the bond until the plaintiffs obtained judgment against the estate. It is the purpose of the statute to give a remedy to the creditor when he acts with reasonable diligence. If the plaintiffs knew that they must proceed seasonably as the period of limitation was about to expire, the delay seems to have been largely attributable to the attitude of the defendant, and, the plaintiffs’ conduct not appearing to have been censurable or blameworthy, they were ostensibly entitled to a trial on the merits. Waltham Bank v. Wright, 8 Allen, 121, 122. Ewing v. King, 169 Mass. 97. McMahon v. Miller, 192 Mass. 241. The evidence so far as reported fully supported the essential averments, and the single justice found, that the plaintiffs had not been guilty of culpable negligence in failing to prosecute their claim, and that justice and equity required that relief should be decreed. But the plaintiffs cannot have judgment unless the claim would have been enforceable against the defendant as executrix if sued within the prescribed period of two years. Spelman v. Talbot, 123 Mass. 489, 493. The action is not brought on the testator’s official bond to recover the penalty for breach of the condition and to obtain execution for the amount due. R. L. c. 173, § 6, cl. 11; c. 172, §§ 9, 10. It is instituted for money had and received to the plaintiffs’ use after the lien of the attachment expired. Before the cause of action accrued the estate however had been represented insolvent and commissioners had been appointed under R. L. c. 142, and by the express provisions of §§ 30-32, the defendant was no longer liable to suit by creditors of the estate. Herthel v. McKim, 190 Mass. 522, 524. Nor can the suit be prosecuted for the purpose of obtaining a special judgment which will, enable the plaintiffs to compel the surety to make reimbursement. See Todd v. Bradford, 17 Mass. 567; Calder v. Haynes, 7 Allen, 387; Tracy v. Warren, 104 Mass. 376; Hayes v. Nash, 129 Mass. 62; Fall River v. Riley, 138 Mass. 336; S. C. 140 Mass. 488; Crocker v. Buttrick, 187 Mass. 461, 462. A creditor under certain conditions specified in the R. L. c. 177, § 25, may have a special judgment against a bankrupt or insolvent who has given bond to dissolve an attachment, which will enable [421] him to maintain an action against the sureties, but the plaintiffs have not directed our attention to any statute permitting the entry of a special judgment against the executor or administrator of a deceased principal, whose estate is in insolvency, to enable the obligee to sue the surety where there has been a breach of his official bond given for the faithful performance of his duties as constable. The plaintiffs were not remediless. It is the decree of distribution which finally determines the amount to be paid to creditors and even if the return of the commissioners must be presumed to have been made, no decree thereon appears to have been entered. Bowers v. Hammond, 139 Mass. 360, 363. And if so the plaintiffs, within the eight remaining days, could have applied under R. L. c. 142, § 9, for an extension of time in which to present and prove their debt. Aiken v. Morse, 104 Mass. 277. Walker v. Lyman, 6 Pick. 458. The statute granting relief in equity cannot be construed as superseding these provisions, or as recognizing a right of action by a creditor, where if suit had been promptly commenced, it must have failed by reason of the proceedings in the court of probate, and the bill must be dismissed. Decree accordingly.