Hawley v. Botsford

Ellsworth, J. From the motion it appears, that in November, 1848, Sylvester Taylor became indebted to the petitioner by the note in dispute. It bears date the 16th day of November, 1848, is for $150 payable in January, 1852, and was guarantied by Edwin Botsford who is now dead, and Oliver S. Botsford one of the respondents is his administrator. Edwin Botsford died in December, 1848, [83] his estate was represented insolvent, commissioners duly-appointed, the time for exhibiting claims limited to six months, of which notice was given as the court directed, and commissioners made report of the claims allowed, which have been paid, and the administration account has been settled; but this note was not presented or allowed, and has never been paid, either by the maker or guarantor. After the debts allowed by the commissioners were paid, it appeared that the estate was not in fact insolvent, but that valuable real estate remained, and still remains in the hands of said Oliver and a brother, the only heirs of said Edwin. In 1851, said Taylor, the maker of the note, died in California, entirely insolvent. The important questions in the case are these; does the non-presentation of this note and guaranty to the commissioners on Edward Botsford’s estate within the time limited, cut off the petitioner’s right to recover, the estate turning out to be solvent? and if it does not, what is the proper remedy to be pursued in order to obtain payment ? As to the non-presentation, we think that is no objection, since the claim at that time was wholly contingent, and the estate proves to be solvent. The reasons for this are so fully assigned in the case of Bacon v. Thorp, though tried subsequently to this case, on the present circuit in Middlesex,* that we refer to that case rather than go at length over the ground twice. From that opinion it will appear that we hold the petitioner’s claim before us to be good and enforceable, but that, as to the remedy to be pursued, we decide that it cannot be in equity, because there is clear relief at law. For which reason we think the bill was correctly dismissed in the superior court. In this opinion the other judges concurred. Judgment affirmed. Footnotes [*] Reported in the present volume—post.