Cushing v. Field

50 Mass. 180

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1845
• Status: Published

Opinion

Shaw, C. J.

This case comes before us irregularly, bio appeal lies from a judgment dismissing a suit. Perhaps the party might obtain a revision of the grounds upon which the dismissal is founded, by a bill of exceptions.

The plea of pleno administravit should not have been admitted. By St. 1836, c. 273, “ no other plea in bar,” besides the general issue, can be pleaded in the court of common pleas, or in this court. The defendant should have pleaded the general issue and filed a statement in writing, setting forth, as the matter of her defence, the facts which, by the Rev. Sts. c. 66, §§ 12-14, entitle her to be discharged. If she has settled an administration account in the probate court, from which it appears that the whole estate and effects of the intestate, which have come to her hands, have been exhausted in paying charges of administration, &c., then she has a good defence. But if she has rendered no such account, and especially if she has not returned an inventory, then her only defence will be a representation of insolvency. It is only by an inventory and an account, and by regular proceedings in the probate court, that an administrator can defend a suit on the ground of the insolvency of the estate of his intestate. Rev. Sts. c. 68; c. 64, §5; c. 65, § 1.

A judgment of assets quando acciderint could never be entered in this case, because a preference would thereby be given to the plaintiffs, contrary to the Rev. Sts. c. 68, § 1, which require that all the debts shall be paid ratably. See 6 Dane Ab. 144.

Appeal dismissed