Dyer v. Walls

Virgin, J.

Assumpsit on an account annexed against the goods and estate of Moses Webster, late of Vinalhaven, deceased, testate, in the hands of the defendants, his executors.

The defendants interpose the special limitation bar of two years and six months provided for the benefit of estates of deceased persons and their personal representatives, by R. S., c. 87, § 12.

The defendants were duly appointed and qualified on February 15, 1887. This action was commenced on February 18, 1890, more than three years after their appointment and qualification ; and hence it is absolutely barred, unless the facts of the case bring it within some exception. Littlefield v. Eaton, 74 Maine, 516; Lancey v. White, 68 Maine, 28, 30; Gould v. Whitmore, 79 Maine, 383.

The plaintiff attacks the notice of the defendants’ appointment and contends that the case comes within the express provision ofR. S., c. 87, § 18, viz. : "When an executor or administrator does not give legal notice of his appointment, he cannot avail himself of the limitations contained in this chapter.”

The case shows that the defendants, "within three months after giving bond for the discharge of their trust, caused notices of their appointment to be posted in two public places, specified by the judge of probate, in the town where the testator last dwelt,” as required by R. S„, c. 64, § 38. While this fact was not proved by the affidavit of the executors filed within one year after giving bond as provided in R. S., c. 64, § 40, for that was not filed until September, 1890, but in the absence of any statutory provision to the contrary, it seems that the fact may be shown aliunde. Henry v. Estey, 13 Gray, 336; Estes v. Wilkes, 16 Gray, 363.

Was the notice posted a "legal notice” within the meaning of R. S., c. 87, § 18, above quoted? If both of the executors resided in this State its legality could not be questioned. But one of them, at the time of giving notice of his appointment and qualification, and ever since has resided in Now Hampshire. And the statute describing the notice to be given peremptorily provides that, " executors or administrators residing out of the state at the time of giving notice of their appointment, shall appoint an agent or attorney in the state, and insert his name and address in such notice.” R. S., c. 64, § 41, repeated in R. S. , c. 87, § 12. The notice posted by the defendants did not contain the name of any agent or attorney whatever of the exeeutor avIio lias always resided out of the State. If he were the only executor, the illegality of the notice would not be questioned. And we are of opinion that it is none the less invalid because there are two executors, one of which only resides out of the State. For the only notice given was joint, signed by each executor, and did not contain what the statute expressly requires to make it legal.

To be sure, the statute also provides that, "when an executor, residing out of the State, has no agent or attorney in the state, demand or service may be made on one of his sureties, with the same effect as if made on him” (R. S., c. 87, § 12), and it may be said that the plaintiff’s rights may thus be preserved. But while such a construction might meet the particular case since this non-resident executor has given a bond, and presumably Avith sufficient sureties, still all executors are not required to give bond. R. S., c. 64, § § 9 and 11. And in such cases the rights of creditors of the estate would be prejudiced; and the construction must be general and in harmony with all its provisions on the subject.

While generally co-executors, unless the will under which they act directs otherwise, are to be treated in law as one and the same individual, their authority being joint and entire when acting within the scope of their powers (Shaw v. Berry, 35 Maine, 279; Gilman v. Healy, 55 Maine, 120); nevertheless the creditor has a right of action against all who have qualified or at least a majority of them. R. S., c. 64, § 12. Whether the defendants by heedlessly omitting such action on their part as will lose them and the estates under their charge the benefit of the special bar to this action, and thereby render them liable for waste, we need not now inquire. It is sufficient to remark that it behooves all such personal representatives of estates to see that their notices are made in accordance with statutory provisions enacted for their benefit and of the estates to be administered by them.

Oase to stand for trial.

1 Peters, C. J., Walton, Emery, Foster and Haskell, JJ., concurred.