Pattee v. Lowe , 36 Me. 138 ( 1853 )

Howard, J. —

The plaintiff proved that the estate of the defendant’s intestate was duly decreed insolvent; that commissioners of insolvency were appointed, to receive and examine claims against the estate, who accepted the trust, and acted under the commission ,• that at a time and place appointed by them, creditors to the estate presented and proved their claims, and that his claim was then presented and disallowed by the commissioners; and that they undertook to return to the Judge of Probate a list of all claims laid before them, with the sums allowed, in pursuance of the provisions of the statute, on December 12, 1849. The plaintiff being dissatisfied with the disallowance of his claim, appealed from the decision of the commissioners, and gave notice in writing of his appeal, at the Probate Office, on the 18th of the same month. On March 14, 1850, he brought this suit to determine his claim, at common law.

If the proceedings under the commission of insolvency were conformable to law and valid, this action not having been commenced within three months after the report of the commissioners was returned, was not seasonably brought, arid cannot be sustained. R. S. c. 109, § 20.

But if those proceedings were defective, as alleged by the plaintiff, then there is no evidence that a report of the commissioners was returned before notice of the appeal claimed was given. Notice before the return of the commissioners is not in compliance with the requirements of the statute, but premature and inoperative. Subsequent notice is made a prerequisite to the maintenance of the action. R. S. c. 109, § § 17, 18; Goff v. Kellogg, 18 Pick. 256.

By the statute referred to, § 28, no action shall be brought against an administrator, after the estate is represented insolvent, unless for a demand which is entitled to a preference, and not affected by insolvency of the estate; or unless the assets should prove more than sufficient to pay all claims allowed by the commissioners. The proof offered did not bring the plaintiff’s case within the exceptions, and it was not competent in this action, as tending to prove waste and mal-administration, and it was, therefore, properly rejected.

Exceptions overruled, and, nonsuit confirmed.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.