Millett v. Millett

72 Me. 117, 1881 Me. LEXIS 48

Opinion

WaltoN, J.

The act of 1872, c. 85, — which declares that " no action against an executor or administrator, . . . . on a claim against the estate, shall be maintained, . . . unless such 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 by him of his appointment,”— being in derogation of the common law, must be strictly construed. Its burdens must not be extended by implication, unless the implication is clear and unmistakable. It will be noticed that the statute does not in express terms require the " claim” to be signed by the party making it. We think it does not by necessary implication. We. therefore hold that such claim need not be signed by the party making it. Nor does the statute require that the demand of payment shall be in writing. The " claim” must be in writing, but the demand of payment may be oral. We think the " claim” in this case was legal in form, and that payment thereof was legally demanded. As agreed by the parties,

The action is to stand for trial.

Apple TON, C. J., Barrows, Daneorth, Peters and Symonds, JJ., concurred.