John Terry & wife vs. Charles Briggs, 12 Cush. 319

Shaw, C. J. The petitioners state that, in a real action against Elihu Briggs, they obtained a verdict in November, 1845, for the seisin of an undivided part of the estate described ; that a motion was made for a new trial, which was not decided till 1849; that in the meantime, to wit, in October, 1846, Elihu Briggs died, and Charles Briggs, as executor, came in to maintain the motion for a new trial, and attended when the costs were taxed for the plaintiff; but those costs have never been paid.

More than four years elapsed, from the time the respondent took out his letters testamentary, before the filing of this petition. The petitioners pray that the action may now be brought forward, in order to have a judgment for their costs. To this petition, the executor appeared, and put in a general demurrer. This petition cannot be granted.

In order to save their right to have costs from the general assets of the testator, the petitioners should have availed themselves of the provisions of St. 1842, c. 89, and had their judgment entered nunc pro tu/nc, so as to have given it the force and effect of a judgment against the estate of the. testator, during his lifetime. T. G. Coffin, for the petitioners. T. D. Eliot, for the respondent. But if the court had any discretionary power to bring the action forward as prayed for, we are of opinion that it now comes after the statute bar has closed upon all personal claims against the estate of the testator.

Petition dismissed.