Davis v. Smith , 58 N.H. 16 ( 1876 )

The only causes of the plaintiff's removal were, his failure to post a notice of his appointment at a public place, and his giving a residuary-legatee bond, and no other. The only object to be accomplished by his removal is, to enable the defendant to avoid the statute of limitations, and obtain payment of his claim out of real estate now held by innocent purchasers. The defendant's case is devoid of equity; and if, on other points the law were with him, it would be necessary to consider the question of estoppel. But he does not stand in a position to deny the original or the continued validity of the administration. Having that knowledge of the appointment of the executor which a posted notice would give, he cannot complain that no notice was posted. The statute requires the posting of a notice of his appointment, by an executor or administrator, at some public place — Gen. St., c. 176, s. 14; but if a party interested has actual and reasonable notice of such appointment, as to him, the form and manner of the notice are non-essential. Where the provision of a statute is the essence of the thing required to be done, it is mandatory; otherwise, when it relates to form and manner; — and where an act is incident, or after jurisdiction acquired, it is directory merely. Potter's Dwarris on Statutes 222, note 29; U.S. Trust Co. v. U.S. Fire Ins. Co., 18 N.Y. 199, 220; People v. Allen, 6 Wend. 487; Wood v. Chapin,13 N.Y. 509; Marchant v. Langworthy, 6 Hill 646; Rex v. Loxdale, 1 Burr. 447.

Being perfectly protected by the bond that was given, the defendant cannot complain that a different bond was not required. The irregularities in the notice and bond did not affect his rights. So far as he is concerned, the plaintiff's appointment was valid, and the administration was not suspended. His claim is barred by the statute of limitation.

In this view of the matter, we are not brought in conflict with Tappan v. Tappan, 24 N.H. 400, and Heydock v. Duncan, 43 N.H. 95, cited by the defendant.

In Morgan v. Dodge, 44 N.H. 255, the decree was reversed because the executrix was sole residuary legatee. In the dictum concerning the suspension of administration in favor of creditors, in such a case as this, we do not concur.

The statute, under which the original administration was granted, contemplates and provides that the widow shall inform the judge in writing that she accepts the provisions of the will. This was not done. The provision is one intended for her benefit, and which she might waive. But we are not called upon to decide what rights she might have. If she might complain, the defendant does not stand in her position, and is not authorized to complain for her.

Decree reversed.