Gross v. Howard , 52 Me. 192 ( 1863 )

The opinion of the Court was drawn by

Barrows, J.

The irregularities occurring throughout these proceedings are numerous and extraordinary, and indicate a looseness of practice in the matter of issuing notices to parties, whose rights are to be affected by the proceedings contemplated, and a general inattention to the requirements of law in the Probate Court, that are greatly to be deprecated.

To commence with the objection that lies nearest to the proceeding appealed from: — To justify a decree licensing an executor or administrator to make sale of any real estate, belonging to the estate which he represents, (except such as is held in mortgage, or taken in execution, by the executor or administrator, for a debt due the estate,) it must be made to appear that such sale is necessary to pay debts, legacies or expenses of sale and administration, or that a sale of some portion of the real estate is necessary for these purposes, aud that, by a partial sale, the residue would be greatly depreciated. R. S., c. 71, § 1, items, 1st, 4th, 7th.

Now, here, the decree granting the license and finding these facts is appealed from, and to authorize the appellate Court to affirm the decree, enough of these facts must be proved or admitted, in the Supreme Court of Probate, to make out a case for the original petitioner. They are not only not proved nor admitted, but, by the agreed statement of facts presented to us, the contrary appears.

The administrator never had any dealings with the deceased. His claim for supplies furnished to Catherine Gross, after the decease of the intestate, was against said Catherine only. She only could assert a claim against the estate of the deceased, upon the outstanding bond. She does not seem ever to have done so. She held a mortgage to secure it, and there is no evidence before us that there was anything due from the estate of the deceased upon that bond.

The counsel for the appellee seem to rely upon the decree appealed from, as evidence of the facts to be made out, but, in a hearing upon an appeal from that decree, it can hardly be necessary to say that it cannot be thus received.

And it is time that parties should more fully understand that it is an exceedingly precarious advantage that can be obtained, by misleading a Judge of Probate in the exercise of his functions.

It is urged that the sale is necessary, and the license should be granted, to raise money to pay the expenses of administration.

If we conceded the propriety of this position, under the circumstances of the case, still there is nothing before us to show the amount of those expenses, and the license must be limited to that, as it is not alleged nor proved that a partial sale would depreciate the residue.

But looking into the agreed statement of facts, upon which we are to pass, we find that this administration was improvidently granted upon the ex parte representation of this petitioner, that he was a creditor of the intestate, when he was not so, and when, so far as appears, the case was within the provisions of section 5, chapter 63 of the Eevised Statutes, declaring that administration shall not be granted unless it appears that there is personal estate of the deceased amounting to at least twenty dollars, or that the debts due from him amount to at least that sum, and that he left that amount in value of real estate. It was held in Bean v. Bumpus, 22 Maine, 553, that the Probate Judge "has no jurisdiction, so that he can grant administration, if it does not appear to his satisfaction” that there is personal estate, or debts due from the intestate and real estate, sufficient to meet the requirements of the statute above referred to.

Now, even if we substitute the recital in the decree granting administration for the agreed statement of facts before us, and hold that the decree granting administration, not being appealed from, is conclusive as to the rightfulness of the appointment, it would by no means follow that a license to sell real estate ought to be granted to pay the expenses of administration.

The petition for administration alleges that there was personal estate, rights and credits, which ought to be administered according to law; and there is no allegation that the debts due from the estate amounted to twenty dollars, (which would be necessary to give the Court jurisdiction to appoint for that reason,) although it is asserted that the applicant for administration is a creditor. The decree finds the facts set forth in the petition and those only. So that unless we resort to the agreed statement, it would seem that there was personal estate which should have paid the administration expenses. If we take the agreed statement, (which is really the case presented by the parties for adjudication,) the impropriety of the appointment is at once manifest. The appellee may have done all under an innocent misapprehension of his legal rights, but to suffer a stranger, thus intermeddling, to deprive the heirs of a person deceased, of their rights of inheritance in their progenitor’s real estate, for the purpose of paying expenses incurred by his own wrong, would be an abuse of the power to grant licenses for the sale of real estate. -

That the land has been sold, under the license granted by the Judge of Probate, can make no difference in our decision of this case. Nowell v. Nowell, 8 Greenl., 220. Enough has been said to show the conclusion to which a reasonable attention to the requirements of law in other matters must bring us. Decree reversed, with costs for the appellants.

Appleton, C. J., Cutting, Davis and Walton, JJ., concurred.