
    Thomas F. Millett vs. Fanny S. Millett, Administratrix on the estate of Thomas Millett.
    Somerset.
    Opinion March 5, 1881.
    
      Executor and administrator ■ — claim against. Demand for payment. Stat. 1872, c. 85.
    
    The claim against an executor or administrator presented as required by the . stat. 1872, c. 85, need not be signed by the party making it, and the demand of payment need not be in writing.
    The claim must be in writing but the demand of payment may be oral.
    ON AGREED STATEMENT OF FACTS.
    More than thirty days before suit was brought the plaintiff’s attorney delivered to the defendant a bill, headed — " Pittsfield, January 25th, 1876 — Estate of Thomas Millett to T. F. Millett, Dr.” and containing sundry items all in the handwriting of the plaintiff’s attorney and demanded payment of the amount claimed in the bill as attorney for the plaintiff. The plaintiff was not present, and the paper was not signed.
    If this was a sufficient presenting of claim and demand of payment the action is to stand for trial; if insufficient, judgment to be entered for defendant.
    
      J. B. Beakes, for the plaintiff.
    
      I). D. Btewart, for the defendant.
   WaltoN, J.

The act of 1872, c. 85, — which declares that " no action against an executor or administrator, . . . . on a claim against the estate, shall be maintained, . . . unless such claim is first presented in writing, and payment demanded, at least thirty days before the action is commenced, and within two years after notice is given by him of his appointment,”— being in derogation of the common law, must be strictly construed. Its burdens must not be extended by implication, unless the implication is clear and unmistakable. It will be noticed that the statute does not in express terms require the " claim” to be signed by the party making it. We think it does not by necessary implication. We. therefore hold that such claim need not be signed by the party making it. Nor does the statute require that the demand of payment shall be in writing. The " claim” must be in writing, but the demand of payment may be oral. We think the " claim” in this case was legal in form, and that payment thereof was legally demanded. As agreed by the parties,

The action is to stand for trial.

Apple TON, C. J., Barrows, Daneorth, Peters and Symonds, JJ., concurred.  