Pierce v. Saxton

31 Mass. 274

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1833
• Status: Published

Opinion

Wilde J.

afterward drew up the opinion of the Court. Upon the facts agreed the Court is of opinion, that the plaintiff is entitled to judgment for costs against the defendant, de bonis propriis.

The St. 1784, c. 2, provides, that “ when a claim is disputed in the course of the common law, execution shall not issue as in common cases, but the judgment of the court respecting the same shall be the amount of the claim, and added to or deducted from the commissioners’ report, as the case may require.” It is intended, we think, that the debt or claim only is to be added to or deducted from the commissioners’ report. And this construction of the statute we think can do no injustice to the administrator ; for in all cases the judge of probate would undoubtedly allow an executor or administrator to charge the costs paid, in his account of administration, unless he had unreasonably objected to a creditor’s claim, thereby compelling him to commence a suit or abandon his just claim. And if the executor or administrator does without cause object to a creditor’s claim, there is no good reason to be given, why he should not be liable for costs. The construction, therefore, which we give to the statute will work no injustice, and may operate as a beneficial restraint upon executors and administrators, who may be disposed to abuse their trust. [See Burns v Fay, ante, p. 8.]