Cummings v. Halsted ( 1879 )

Berry, J.

“When commissioners are appointed, as provided in this chapter, for examining and allowing claims against any estate, no action shall be commenced against the executor or administrator, except to recover the possession of real estate or the possession of personal property.” Gen. St. c. 53, § 15. Section 50 of the same chapter reads: “In no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against an executor or administrator.” Laws 1870, c. 65, § 1, (Gen. St. 1878, c. 53, § 20,) provides “that the duties conferred upon commissioners, by chapter 53 of the General Statutes, shall be performed by the judge of probate, in all cases where the estate does not exceed in value the sum of five thousand dollars.” The effect of this section of the act of 1870 we take to be to make the judge of probate the commissioner in the cases mentioned, so that the above-quoted provisions of Gen. St. c. 53/ §§ 15, 50, apply as well to a case in which the judge of probate acts as commissioner under the law of 1870, as to a case in which commissioners are appointed by him under the provisions of said chapter 53.

Gen. St. c. 90 is the lien law of this state. It gives to one who performs labor or furnishes materials, etc., in constructing, repairing, etc., any house, boat, etc., by virtue of a contract with the owner, a lien upon such house, boat, etc., to secure payment for such labor and materials. It also provides that the person entitled to a lien shall make an account, in writing, of his labor or materials, within a year after performing or- furnishing, and that the account, when filed with the proper register of deeds, shall operate as a lien upon the “structures and buildings” for which the work is done or materials furnished, from the commencement of such work or furnishing, and for two years after the completion thereof. (Section 8 enacts that “every person holding such lien may proceed to obtain á judgment for the amount of his account 'thereon, according to the course of legal proceedings in like ■cases; and when any action is commenced on such accounts, ■within the time of such lien, the lien shall continue until such motion is finally determined, and the judgment satisfied.” Other provisions follow, in relation to the enforcement of the judgment by the sale or leasing of the property bound by the lien, and section 14 provides that “executors and administrators, under this chapter, have the same rights, and are subject ■to the same liabilities that their testator or intestate would be, • or might have, if living.”

Now, the “liability” of a testator or intestate, if living, to a ■person entitled to a lien, under this chapter, against the property of such testator or intestate, is the liability to have ■such lien preserved and continued by the filing of an account, .and by the bringing of an action upon such account “according to the course of legal proceedings in like cases,” and also the liability to have such lien made effectual for the payment -of. the account, by the obtaining of a judgment in such action, mnd the enforcing of the same by sale or lease of the property bound bi1" the lien. This liability is preserved against the • executor or administrator of such testator or intestate by see'tion 14, the evident purpose being to preserve the lien, and to secure to the lien-holder the same preference over the gen- • eral creditors of the testator or intestate, after the. death of much testator or intestate, which the lien law secured to him ■while such testator or intestate was living.

There are no proceedings known to the probate court by ■which the “liability” which section 14 thus preserves against .an executor or administrator can be enforced and.made availmble. This must be done in a district court, or a court of miinilar jurisdiction. To give effect, then, to section 14, as, .according to a familiar canon of construction, we must, do if practicable, it is to be regarded as a special provision upon •¿he particular subject of liens. As respects such particular subject, It therefore controls the general provisions of section» 15 and 50, of chapter 53; or, in other words, it makes an exception to these general provisions as regards the lien given, by the chapter in which it occurs.

Order affirmed.