Pettengill v. Patterson , 39 Me. 498 ( 1855 )

Appleton, J.

— By R. S., c. 146, § 29, no action can be maintained against an executor or administrator after the expiration of four years from the date of his appointment, and notice thereof, except in the cases mentioned in R. S., c. 120, “where the provisions are distinctly stated.” In McLellan v. Lunt, 14 Maine, 254, it was held that a writ of scire facias, as well as an action of dpbt, commenced more than four years after the appointment of an executor or administrator, though founded upon a judgment reeov-ered within four years, was barred by the statute of 1821, c. 52, § 26. This action is consequently barred, unless saved by the provision of R. S., c. 120.

By R. S., c. 120, § 23, the same limitation as to actions against executors and administrators, is enacted as in c. 146, § 29, subject only to the exception of “ cases after mentioned.” By § 24, provision is made for the case where assets have been received after the expiration of the period of four years.

The only section which is applicable is the twenty-fifth, by which it is provided when the demand of any creditor, “ founded on any covenant, contract or agreement, shall not accrue'within four years,” that “the claimant may file such demand in the pobate office within said term ; and the Judge of Probate shall direct the executor or administrator to retain in his hands assets, if there are sufficient, unless the heirs to such estate, or the devisees thereof, shall give bond, with sufficient surety or sureties, in the opinion of the Judge of Probate, to such executor or administrator to respond to the same.” When the security above referred to is given, the executor or administrator is not allowed to retain in his hands the assets of the estate for the purpose of meeting the demands referred to in § 25, but the remedy of the creditor is upon the bond. If no bond is given, then by § 21, the claim is to be brought against the executor or administrator.

It was obviously the intention of the Legislature, that four years should be a perfect bar to all actions, except in the cases specifically mentioned. The plaintiff does not bring herself within any of the statutory exceptions. Her claim was contingent and uncertain, depending upon the duration of her life. No demand was ever filed in the probate office. More than seven years have elapsed since the defendant assumed his trust as executor. If no demand is filed in accordance with § 25, the executor has no right to retain the assets of the estate. That right exists only when the demand is filed, and the heirs or devisees refuse to give the required bond, and upon such refusal the Judge of Probate shall direct him to retain such assets as may be sufficient to satisfy the demand filed. The defendant, if in no fault, should not be held, unless he has retained assets to meet the present claim. That he could not do without the direction of the Judge of Probate. The plaintiff cannot complain that assets have not been retained, inasmuch as she has never filed in the probate office the demand which she now seeks to enfoi'ce.

In Morton v. Morton, 4 Cush. 518, no question as to the effect of the statute of limitations arose. Scire facias is undoubtedly the proper remedy to revive a judgment, but when barred by lapse of time, it cannot be maintained. Such is the condition of the present plaintiff. Her right to maintain the present suit is barred by statute.

Plaintiff nonsuit.

Tenney, J., did not sit in this case.