Boothby v. Boothby

This is an action of debt against the administratrix of the estate of Richard Boothby, upon a bond given by the intestate during his life to the plaintiff. The claim was not presented to the defendant in writing and payment demanded1 thirty days before' the action was brought, and the question is-whether under R. S., c. 87, § 11, as amended by the act of 18^2, c. 85, this omission precludes recovery.

It is urged that the terms of the bond bind his administrators-as well as the intestate himself, that the administratrix since her' appointment has herself failed to keep the condition, and that for such default of the administratrix since the death ,of the intestate an action may be maintained without the previous statutory notice and demand.

The statute provides that "no action against an executor or administrator ... on a claim against the estate shall be maintained . . . unless such claim is first presen ted in writing and payment demanded at least thirty days before the action is commenced.” The claim which this suit is brought to enforce is clearly one against the estate, upon an obligation given by the-intestate in his life, and the language of the statute does not permit such an exception to be made as that for which the plaintiff contends. Moreover, it is the direct- intent of the statute to give the executor or administrator thirty days after notice and. demand before the estate shall be liable to an action for V' - own failure to fulfil the contracts or covenants which the testator or the intestate may have entered into.in his lifetime. During the thirty days there must always be some legal obligation which the administrator fails to perform, else no liability to suit can subsequently attach to the estate in his iuncb. It would manifestly be impracticable, therefore, to attempt to except from the *20operation of the statute a case, or class of cases, on the ground that the failure of the administrator on his own part to keep the •contracts made by the intestate during life exposed the estate to -an action at once, for his own default, without notice. Until this action was brought, the administratrix may not have known that the intestate had given the bond declared on. The case in this respect is substantially as if the intestate had given a note •payable in installments and had paid those which matured in his iife. The administrator failing to pay the next installment, .maturing after his appointment, is still entitled to the thirty days inotice and demand before suit; and provision is made for the .reservation of assets or the liability of heirs and devisees in •certain cases where the right of action does not accrue during the period of administration. 1872, c. 85, § § 14-16.

The decisions upon this statute have already established the rule that it is an essential part of the plaintiff’s case to prove •compliance with its provisions and that unless the claim was presented in writing and payment demanded thirty days before the date of the writ, or unless this requirement was waived, the action cannot be maintained. Eaton v. Buswell, 69 Maine, 552 ; Me. Cent. Institute v. Haskell, 71 Maine, 487; Stevens v. Haskell, 72 Maine, 244.

Exceptions overruled.