Eaton v. Buswell

69 Me. 552, 1879 Me. LEXIS 104

• Court: Supreme Judicial Court of Maine
• Decided: June 5, 1879
• Status: Published

Opinion

Appleton, O. J.

The statute of 1872, c. 85, § 12, provides that “no action against an executor or administrator on a claim against the estate shall be maintained, unless snch claim is first presented in writing and payment demanded at least thirty days before the action is commenced, and within two years after notice is given of his appointment.”

The language is clear. Its meaning is unmistakable. In the past snch action might have been maintained without such notice. In the future it shall not be.

The only notice produced fails in all the essential requirements of the statute. No claim whatever is set forth therein. The plaintiff is not indicated as the claimant. Payment is not demanded. A proposal to refer is no demand of payment. Nor is the want of such notice pleadable in abatement. The giving the required notice is essential to the plaintiff’s right to recover. It should be averred in the writ and proved in the trial.

Exceptions stistained.

Walton, Barrows, Danfobth and Libbey, JJ., concurred.