Continental Life Insurance v. Smith

Supreme Court of Rhode Island

Continental Life Insurance v. Smith

11 R.I. 433, 1877 R.I. LEXIS 18

DecidedFebruary 17, 1877

StatusPublished

This text of 11 R.I. 433 (Continental Life Insurance v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Continental Life Insurance v. Smith, 11 R.I. 433, 1877 R.I. LEXIS 18 (R.I. 1877).

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Opinion

Durfee, C. J.

The opinion of the court is, that if the plaintiffs wish to participate in the estate in process of settlement in the Probate Court, in common with the other creditors, they must discontinue their action in this court *434 and proceed before the commissioners as other creditors proceed. They cannot, if the defendant objects, proceed at once in both tribunals ; nor can they, if he objects, proceed to judgment in this court, and have the amount of it allowed in, or added to, the commissioners’report. This we think is apparent from an examination of the different sections of the statute. Gen. Stat. R. I. cap. 175, §§ 11, 12, 16, and 18. See also the dictum of Ames, C. J., in Irons’s Administratrix v. Irons, 5 R. I. 264. But we do not think it is quite clear that the plaintiffs are obliged to discontinue their action or have it dismissed. They may, perhaps, have the right to have it continued to await the result of the proceeding in the Probate Court, and then, if there is a surplus remaining after the payment of the claims allowed in, or added to the commissioners’ report, to prosecute their action for payment out of that surplus, under cap. 175, § 19. If the plaintiffs do not elect to discontinue, we will hear the parties further upon that point.

Charles Hart, for plaintiff. Browne $ Van Slych, for defendant.

The case was subsequently discontinued without costs.

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Durfee, C. J.

The opinion of the court is, that if the plaintiffs wish to participate in the estate in process of settlement in the Probate Court, in common with the other creditors, they must discontinue their action in this court *434 and proceed before the commissioners as other creditors proceed. They cannot, if the defendant objects, proceed at once in both tribunals ; nor can they, if he objects, proceed to judgment in this court, and have the amount of it allowed in, or added to, the commissioners’report. This we think is apparent from an examination of the different sections of the statute. Gen. Stat. R. I. cap. 175, §§ 11, 12, 16, and 18. See also the dictum of Ames, C. J., in Irons’s Administratrix v. Irons, 5 R. I. 264. But we do not think it is quite clear that the plaintiffs are obliged to discontinue their action or have it dismissed. They may, perhaps, have the right to have it continued to await the result of the proceeding in the Probate Court, and then, if there is a surplus remaining after the payment of the claims allowed in, or added to the commissioners’ report, to prosecute their action for payment out of that surplus, under cap. 175, § 19. If the plaintiffs do not elect to discontinue, we will hear the parties further upon that point.

Charles Hart, for plaintiff. Browne $ Van Slych, for defendant.

The case was subsequently discontinued without costs.

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Bluebook (online)

11 R.I. 433, 1877 R.I. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-life-insurance-v-smith-ri-1877.