Limitations, Statute of, Special. Probate Court, Extension of time for bringing action. Executor and Administrator. Election.
If a petition under G.L.c. 197, § 9, by one contending that he is a creditor of the estate of a decedent, for an extension of time within which he might bring an action against the estate, was filed in the registry of probate before the expiration of a time granted on a previous application, a decree granting the petition is valid although it was not entered until after the expiration of the extended period previously granted. The mere facts, that one, contending that he is a creditor of the estate of a decedent, becomes a respondent in a petition by the administrator for leave to pay the whole or a part of the claim and participates in a hearing of that petition which is opposed by one of the next of kin, do not constitute an election which will preclude him from maintaining a petition under G.L.c. 197, § 9, for an extension of time within which he may prosecute his claim by an action.
BY THE COURT.
One who contended that she was a creditor of an estate, before the end of one year from the approval of the bond of the first administrator, brought a petition under G.L.c. 197, § 9, asking an extension of time for bringing an action against the estate. This petition was granted. Before the expiration of the time thus fixed another petition was filed and allowed. Successive petitions were so filed until the last from which appeal was taken. The last petition was filed before the expiration of the time granted on the previous application. It is of no consequence in this connection that the decree on this petition was not entered until after the expiration of such time. Said § 9 makes the date of filing the application the decisive point of time, and not the entry of the decree. No citation on such a petition was required and it might have been granted without notice. All these proceedings were regular. Hellier v. Loring, 242 Mass. 251. It has not been argued that the death of the first administrator and the appointment of an administrator de bonis non were of consequence in any aspect of this matter.
If we take judicial notice of proceedings disclosed in French v. Bray, ante, 121, there was no election of another remedy by the creditor affecting the jurisdiction of the Probate Court to enter the decree from which appeal was taken. See Corbett v. Boston Maine Railroad, 219 Mass. 351, 357. Only the points argued by the appellant have been considered, and they present no ground for reversal.
Decree affirmed.