Kelley v. Forbes , 128 Me. 272 ( 1929 )

Sturgis, J.

The plaintiff seeks in this action of assumpsit to recover for board and services furnished and rendered to the defendant’s testator. The defendant pleaded the general issue, and to an adverse verdict files a general motion.

By Revised Statutes, Chap. 92, Sec. 14, as amended by P. L., 1917, Chap. 133, and by P. L., 1919, Chap. 177, as a condition precedent to the maintenance of her action, the plaintiff is required to present her claim in writing to the defendant or file it in the registry of probate supported by her affidavit or that of some other person cognizant thereof either before or within twelve months after the defendant’s qualification as executrix, Holbrook v. Libby, 113 Me., 390; Rawson v. Knight, 71 Me., 99; Eaton v. Buswell, 69 Me., 552.

And while, before the claim is barred by the statute of limitations, presentment or filing may be waived by the personal representative, Littlefield v. Cook, 112 Me., 551; Marshall v. Perkins, 72 Me., 343; Rawson v. Knight, supra, under a plea of the general issue, want of filing or presentment is in issue and failure to prove performance or waiver thereof bars an action by the claimant, Holbrook v. Libby, supra; Boothby v. Boothby, 76 Me., 17; Maine Central Inst. v. Haskell, 71 Me., 490.

The instant action falls within these rules. The case sent forward records no evidence of presentment or filing of the plaintiff’s claim nor of waiver of this requirement by the defendant. For this failure of proof, the verdict is set aside.

Motion for new trial granted.