Bessey v. Cook , 92 Me. 261 ( 1898 )

Haskell, J.

The plaintiff has judgment against the goods and estate which were of one Jesse H. Cook in the hands of his administrator.

The defendant, Mary A. Cook, is shown to have in her hands a certain note for $100, signed by Rufus E. Page, secured by a mortgage of said Page, dated February 28, 1895, recorded in Waldo Registry of Deeds, Book 441, Page 256, that is the remnant of the estate that her husband; Jesse H. Cook, conveyed to her shortly before his death, to enable her to settle the same without the expense of administration. She has paid all the debts of the estate, except the debt to the plaintiff that was contingent at the time of the conveyance to her and of which she was ignorant. Tf she be allowed to deduct from the property received all the payments that she has made therefrom, and retain the value of her dower in the land by her sold, the Page note and mortgage would still remain assets in her hands belonging to her husband’s estate that cannot be come at tó be attached in an action at law.

• The plaintiff brings this bill to compel the application of said mortgage debt in satisfaction of his judgment, under the provisions of R. S.-, c. 77, § 6, as amended by acts of 1889, c. 208, and of 1891, c. 53, and is entitled to maintain the same; but, as the bill was brought without previous demand, the plaintiff should not recover costs.

Bill sustained. Decree below reversed.