Grinnell v. Baxter

34 Mass. 383

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1835
• Status: Published

Opinion

Shaw C. J.

delivered the opinion of the Court. This is an appeal from the decree of the judge of probate disallowing certain claims of the appellant in his administration account, being his own personal claims against his intestate.

This cause has been placed upon considerations of general equity ; and because these personal demands were connected with a mortgage held by the administrator against his intestate, it is contended that it gives him an equitable claim to have them allowed in this form. But the Court are of opinion, that this ground is untenable. This Court has extensive powers as a court of equity and as a court of common law. But it is important, that these jurisdictions should be kept distinct, especially on account of the different remedies they are intended to afford. We are now sitting as a Supreme Court of Probate to revise the doings of a Probate Court, and are bound to make such decree as the regular Court of Probate ought by law to make, in the like case.

The jurisdiction of the judge of probate over the private demands of the administrator against his intestate, arises from necessity, because the administrator cannot bring a suit; but it is to be treated in most if not in all respects, as if it were a personal action, by a third person, against the administrator. The statute of limitations, which would have been a good bar, had a third person been appointed administrator, is a good bar against the administrator.

It would probably be held, that an administrator would be within the equity of the exception of the statute, providing that, if the suit was not barred at the time of the death of the intestate, or thirty days previous, the creditor should have two years from the time of administration taken, to commence his suit. St. 1793, c. 75, § 3. As the administrator can commence no suit, it might well be held, that, taking administration, and having the estate in his own control, should be deemed equivalent. But that principle would not avail the administrator in the present case.

Whatever rights the administrator had as mortgagee, either for the security of the notes for which the mortgage was originally given, or for the demand indorsed thereon, we think his right to maintain a personal action against his intestate was barred at the time of his decease, and therefore the claim of the administrator to be allowed them in his account, as a charge upon the intestate’s personal property, was rightly rejected.

Decree of Probate Court affirmed.