Wells v. Child

Gray, J.

By the Gen. Sts. c. 97, § 1, “ every executor and administrator, within three months after giving bond for the discharge of his trust,” shall give public notice of his appointment; and by § 5 “ no executor or administrator, after having given notice of his appointment as provided in section one, shall be held to answer to the suit of any creditor of the deceased, unless it is commenced within two years after the time of his giving bond as aforesaid, except in the cases hereinafter mentioned,” of which this is not one.

By the Gen. Sts. c. 93, § 2, every executor, before entering upon the execution of his trust, shall give bond with sufficient surety or sureties; but by § 5 “ an executor shall be exempt from giving a surety or sureties on his bond, when the testator has ordered or requested such exemption,” (as this testator did,) “ but not until all creditors of the estate, and the guardian of any minor interested therein, have been notified, and had opportunity to show cause against the same.” And by c. 101; § 12, “ no bond required to be given to the judge of the probate court, or filed in the probate office, shall be sufficient, unless examined and approved by the judge, and his approval thereof under hi official signature is written thereon.”

The defendants ga-:e bond without sureties ; and the plaintiffs contend that the special statute of limitations, relied on by the defendants, does not apply to this case, for two reasons: 1st, that no sufficient notice was given to the creditors, nor to a minor legatee, for whom no guardian had been appointed; 2d, that the bond was not approved by the judge of probate after the creditors had had opportunity to show cause against the same. But the court is of opinion that neither of these reasons is sufficient to prevent the operation of the statute.

1. The Gen. Sts. c. 93, § 5, do not prescribe the mode of notifying the creditors, or the guardian of any minor interested in the estate, or require the executors to determine who are in law such creditors or guardians, and serve every one of them personally with a citation, or to obtain the appointment of a guardian for any minor who happens to have none; but are reasonably and effectively complied with by the publication in a newspaper of an order of notice addressed to all persons falling within the classes specified in the statute, according to the usual practice of the probate courts in cases where large numbers of persons are interested, some of whom cannot be supposed to be personally known to the party required to give the notice. Laughton v. Atkins, 1 Pick. 547. Marcy v. Marcy, 6 Met. 367, 368. Arnold v. Sabin, 1 Cush. 530, 531. Gen. Sts. c. 92, § 21; c. 117, § 29. In Abercrombie v. Sheldon, 8 Allen, 532, no notice in any form was given to creditors, or ordered by the judge of probate.

2. The bond, and the approval of the judge of probate, written thereon, both bear date of the day when the executors offered the will for probate and asked to be exempted from giving any surety on their bond. It would have been more regular for the judge not to approve in writing the bond without sureties, until after the parties interested had had opportunity to show cause against its being so given. But the Gen. Sts. c. 101, § 12, do not fix any time at which his approval must be written. The bond could have no operation before the letters testamentary were issued ; and the formal order of the judge that they should give bond without sureties was incorporated' in the same decree which admitted the will to probate and ordered the letters testamentary to issue. This decree was made after the return of the order of notice, and the bond was not delivered to the judge or filed in the probate office until that day. Under these circumstances, the 16th of August, being the day on which the bond was delivered and first had any legal operation or effect, must be deemed the time of “ giving bond,” within the meaning of the Gen. Sts. c. 97, § 1, from which the special statute of limitations begins to run. The description of this time, in § 3, as “ the date of the administration bond,” must be taken to mean the date of giving the bond in the sense above explained.

The special statute of limitations is therefore a bar to this action, and there must be Judgment for the defendants.