Hicks v. Wilbur

¶1 dissenting. I am unable to concur in the foregoing opinion in so far as it decides that where a claim for damages specific in statement as to amount, based upon the tortuous conduct of a decedent, is duly filed against his estate and not disallowed the resulting allowance thereof under the statute extends only to the question of liability and not to the amount of damages. The claim filed by Mr. Hicks clearly states that it is founded on alleged trespasses of the testator and names the resulting damages as $1,000. In my judgment the proper interpretation of Chapter 314 of the General Laws requires us to hold that the failure to disallow the claim is in effect its allowance as filed. The statute does not contemplate allowance in part and disallowance in part as the result of a failure to disallow it at all. The provision in Section 7 of said chapter that after the expiration of the period within which disallowance of claims may be *276 made “the executor or administrator . . . shall pay-claims not disallowed” seems clearly to imply the payment of claims as filed, which have become incontestable because not disallowed. The claim of the petitioner impresses me as an unconscionable one in amount which in good conscience ought never to have been made and ought not now to be pressed. Its enforcement against Mrs. Wilbur will apparently be a great hardship. Nevertheless I am unable to see how she can obtain relief in this proceeding and think that the respondent’s exception should be overruled and that the case should be remitted to the Superior Court for the entry of a decree in conformity with the decision of that court.