Opinion
Opinion August 9, 1929.
ESTATES. EXECUTORS AND ADMINISTRATORS. PLEADING AND PRACTICE. CHAP. 92, R. S., SEC. 14. P. L. 1917, CHAP. 33. P. L. 1919, CHAP. 177.
One making claim against an estate is required by the provisions of Sec. 14, Chap. 92, R. S., as amended by P. L., 1917, Chap. 33 and P. L., 1919, Chap. 177, as a condition precedent to the maintenance of his action, to present his claim in writing to the administrator or executor or file it in the registry of probate supported by his affidavit, or that of some other person cognizant thereof, either before or within twelve months after the qualification of the administrator or executor. While, before the claim is barred by the statute of limitations, presentment or filing may be waived by the personal representative, under a plea of the general issue, want of filing or presentment is in issue and failure to prove performance or waiver thereof bars an action by the claimant.
In the case at bar the record showed no record of presentment or filing of the plaintiff's claim nor of waiver of that requirement by defendant. The verdict was therefore in error.
On motion for new trial by defendant. Action of assumpsit to recover for board and services furnished to defendant's testator. Trial was had before the Supreme Judicial Court for the County of Aroostook, February Term, 1929. The jury rendered a verdict for plaintiff assessing damages in the sum of $545.52. A general motion for new trial was filed by the defendant. Motion for new trial granted.
The case sufficiently appears in the opinion.
W. P. Hamilton, for plaintiff.
Francis W. Walsh, Ransford W. Shaw, for defendant.
SITTING: WILSON, C. J., DUNN, DEASY, STURGIS, BASSETT, FARRINGTON, JJ.
The plaintiff seeks in this action of assumpsit to recover for board and services furnished and rendered to the defendant's testator. The defendant pleaded the general issue, and to an adverse verdict files a general motion.
By Revised Statutes, Chap. 92, Sec. 14, as amended by P. L., 1917, Chap. 133, and by P. L., 1919, Chap. 177, as a condition precedent to the maintenance of her action, the plaintiff is required to present her claim in writing to the defendant or file it in the registry of probate supported by her affidavit or that of some other person cognizant thereof either before or within twelve months after the defendant's qualification as executrix, Holbrook v. Libby, 113 Me. 390; Rawson v. Knight, 71 Me. 99; Eaton v. Buswell, 69 Me. 552.
And while, before the claim is barred by the statute of limitations, presentment or filing may be waived by the personal representative, Littlefield v. Cook, 112 Me. 551; Marshall v. Perkins, 72 Me. 343; Rawson v. Knight, supra, under a plea of the general issue, want of filing or presentment is in issue and failure to prove performance or waiver thereof bars an action by the claimant, Holbrook v. Libby, supra; Boothby v. Boothby, 76 Me. 17; Maine Central Inst. v. Haskell, 71 Me. 490.
The instant action falls within these rules. The case sent forward records no evidence of presentment or filing of the plaintiff's claim nor of waiver of this requirement by the defendant. For this failure of proof, the verdict is set aside.
Motion for new trial granted.