Sever v. Russell

Wilde, J. Several points have been stated and argued by counsel in this case, which we have not found it necessary to consider, the court being of opinion, that this court as a court of chancery has no jurisdiction. The case of Jennison v. Hapgood, 7 Pick. 1, 7, is directly in point; and the law in that case is, we think, laid down by chief justice Parker with entire accuracy“ As to all the accounts and proceedings in the probate court, where upon the face of them that court has jurisdiction, this court, as a court of chancery, has no jurisdiction, but will hold all that has been properly done there, as conclusive. If any one was injured by any order or decree of that court, the remedy was by appeal to the supreme court of probate. If, as the plaintiffs allege in the amended bill, the proceedings were void for fraud, and if the plaintiff may treat them as a nullity, that would not give this court, as a court of chancery, original jurisdiction. If the proceedings are merely void, the defendant must be cited to account in the probate court. If errors have happened, they are to be corrected in that forum, if corrected at all.” All these remarks apply directly to the present case. The defendant was [518] the executor of the last will and testament of Mercy Sever, and he settled his final account of administration in 1811, which was then allowed by the judge of probate. It has been argued, that no notice was given to the parties interested of the settlement of the account, and it does not appear by the record that any notice thereof was so given. But, if there had in fact been no notice, the defect would not give this court; as a court of chancery, jurisdiction, as before remarked. But there is no doubt, that notice in this case must be presumed. It is remarked by Jackson, J.,in the case of Brown v. Wood, 17 Mass. 68, 72, that “ Upon the common presumptions in favor of every judicial tribunal, acting within its jurisdiction, we must suppose that all persons concerned had due notice. The presumption in the present case is strengthened by the knowledge we have, that in many counties, it was not customary to mention in the decree, that such notice had been given.” So, after a long acquiescence of heirs and creditors in the sales of real estates, by executors and administrators, notice of the sales by them may be presumed. Leverett v. Armstrong, 15 Mass. 26. And after such a long acquiescence in the settlement of the defendant’s account, it may be well doubted, whether it ought to be opened on a charge of fraud. The counsel for the plaintiff admits that the defendant is not chargeable with any moral fraud; and we apprehend it would be difficult to make out a fraud in law. But it is not necessary to advert to the facts on this point, as it cannot be decided so as to bind the parties in this action. Bill dismissed.