Glines v. Weeks

Field, J. Whether an equity of redemption exists in the land conveyed to Glines, and, if it does, whether it can now be sold to pay the debts of the estate of Edwin L. Weeks, are questions that cannot be determined in this proceeding. If Weeks had an equity of redemption in this land, it descended on his death to his heirs at law, subject to dower in his widow. The heirs at law can bring a bill in equity to redeem the estate, and the widow can, if she released dower in the deed; and this they do in their own right. By statute, an administrator has the right- to redeem, if there is an equity of redemption belonging to the estate; but if the administrator redeems, he redeems for the benefit of the widow and heirs, except so far as the land may be sold in order to pay the debts of the estate, and the right of dower of the widow cannot be sold for that purpose. Aiken v. Morse, 104 Mass. 277. Whether, if she released dower in the deed to Glines, and the mortgage is redeemed by an administrator, she may not be excluded from dower until she contributes her share towards the redemption, need not now be considered. The principal conflict of interest is between the creditors of the estate and the heirs at law of Weeks; and the heirs at law are not a party to this proceeding. But if it is a question that might properly be litigated, whether an equity of redemption does not exist, which is new assets, and so liable to be sold for the payment of the .debts of the estate, the Probate Court might remove the administratrix if she declined to apply to that court for a license to sell the equity of- redemption. The difficulty is in dealing with the report. The report states that “ the only act of maladministration relied upon by the petitioners in support of their petition was the refusal of the appellant to become a party to said suit in equity in her capacity as administratrix.” It abundantly appears that she has no property of the estate with which to redeem, and, under these circumstances, it is not her duty as administratrix to advance her own [551] money in order to redeem the land for the benefit of the estate. The question reserved for the full court is “ whether, if such equity of redemption exists, the facts stated show that there are newly discovered assets of the estate of said Edwin L. Weeks which his administratrix has a right to recover and apply to the payment of debts due from him at his decease.” If there are such new assets, the decree of the Probate Court is to be affirmed; otherwise, reversed. But the heirs at law, who are the principal, if not the only, persons adversely interested, have not been heard, as they are not parties, and any opinion we might express upon the principal question in the case would not affect them. The debts of the estate are barred by the Gen. Sts. c. 97, §§ 5, 20, (Pub. Sts. c. 136, §§ 5, 9,) unless, by the discovery of the existence of the bond in September, 1882, assets have come to the hands of the administratrix after the expiration of two years, within the meaning of the Gen. Sts. c. 97, § 6 (Pub. Sts. c. 136, § 11). Aiken v. Morse, ubi supra. Tarbell v. Parker, 106 Mass. 347. We think that it is a proper subject of judicial inquiry, if any person is willing to become administrator of the estate, whether there is not an equity of redemption, which is new assets, within the meaning of the Pub. Sts. e. 136, § 11; and that, for this reason, the decree of the Probate Court should be affirmed. Welsh v. Welsh, 105 Mass. 229. Decree affirmed.