Alden v. Stebbins

99 Mass. 616

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1868
• Status: Published

Opinion

Wells, J.

The case of Chenery v. Webster, 8 Allen, 76, is decisive against this action. The real estate in question was inventoried, and, by statute, was assets for the payment of debts, to be converted and applied in the mode which the statute prescribes. If the plaintiff had sued her demand within the two years limited for that purpose, the defence of plene administravit could not have been maintained. Hildreth v. Marshall, 7 Gray, 167.

The fifty dollars received for rent after the two years had expired does not appear to be “ assets ” at all, but to belong to the heirs; and so must the real estate also, unless there was some fact to authorize the sale, which does not appear in this statement. But the plaintiff’s right to recover does not depend upon the validity or invalidity of the sale. She is barred by the statute ; and, if she can have any remedy, it must be under the St. of 1861, c. 174. Judgment affirmed.