Opinion
Opinion, December 1, 1953.
Executors and Administrators. R.S., 1944, Chap. 152, Sec. 15.
An action of assumpsit cannot be maintained against an estate where plaintiff as a condition precedent has not presented to the executor in writing, or filed in the Registry of Probate, supported by an affidavit anything in support of the claim under R.S., 1944, Chap. 152, Sec. 15.
ON EXCEPTIONS.
This case is before the Law Court on exceptions to the direction of a verdict for defendant. Exceptions overruled.
John A. Platz, for plaintiff.
Edward Beauchamp, for defendant.
SITTING: MERRILL, C.J., THAXTER, FELLOWS, WILLIAMSON, TIRRELL, JJ. WEBBER, J., did not sit.
The declaration in this case is in assumpsit and is brought against the estate of Joseph Girard late of Lewiston in the County of Androscoggin. It is brought by the son-in-law of the testator. It is alleged that the testator promised the plaintiff to pay him the sum of five dollars a week and would bequeath to him by will the proceeds of a certain bank account standing in the name of the testator in the First Federal Savings Loan Association, which bank is located in said Lewiston, and the plaintiff in consideration thereof promised the testator to furnish him with board and lodging so long as he, the testator, should live. The declaration then alleges that the testator neglected to carry out his agreement as aforesaid and made no such provision by will as he had agreed. It is not altogether clear whether the plaintiff is seeking to recover on an implied contract, or an express one, or just what the basis of this sought-for recovery is. It makes no difference.
At the close of the testimony a motion for a directed verdict was made by the defendant which the presiding justice granted. A number of grounds seem to have justified him in doing so. But one stands out. Exceptions to his ruling were taken which are now before us.
A careful examination of the evidence both oral and documentary does not reveal that the plaintiff as a condition precedent to the maintenance of this action has presented to the executor in writing, or filed in the registry of probate, supported by an affidavit of the claimant, anything at all that resembles the allegations set forth in plaintiff's declaration. Chapter 152, Section 15, Revised Statutes of 1944.
Exceptions overruled.