Maeck v. Sinclear

The opinion of the Court was delivered by Collamr, J. /Title is derived to. the Plaintiff through Roswell Butler, who held by levy of an execution against Dixon; and the first question is on the sufficiency of that levy, The only objection is in relation to tlpe description of the premises. 'Rhe statute provides that the description shffll be •“ by metes and bounds or otherwise, with as much precision as the nature and situation of the property will admit.” This levy was upon an undivided fourth part of a mill, mill-yard, and privilege, probably including water &c, The description should be such as would enable the Court and jury to say it was the same property sued for; such as would enable an officer 'to give possession thereof; and so certain that the debtor, and those claiming under him, could clearly discern what was levied on and what was left, As the Jevy fixes the identity of the property, and by itself and reference to the deed on the public record, in the same town, makes its boundaries certain, as we find, by inspection of the deeds, it is sufficiently certain for all the above purposes, and a satisfactory .compliance with the statute. Boylston v. Carver. 11 Mass. R. 517. It is next objected, that the title did not legally pass from the estatp ,of Roswell Butler, inasmuch as the probate court, in ascertaining the balance for which a sale of real estate was necessary, made allowances to the administrator de bonis non when no notice was given to the heirs and creditors that any account was to be presented. The probate court has [106] power to grant licence to sell real estate only when, by the record, it appears necessary for the payment of debts, after the personal fund is exhausted. To have this fully appear, it is generally necessary to have a preparatory settlement, which seems to have been attempted in this case. This is not, however, necessary where enough already appears of record, to show the necessity of a sale. On inspection of the record presented, it appears that one account of the executors had been allowed. The amount to them allowed and the amount assigned to the widow more than exhausted the personal property, included in the inventory; and it is apparent, of record, that, independent of any allowances to the administrator de bonis non, the whole real estate was required to be sold, for the payment of the debts, allowed by the commissioners; and, therefore, such order was authorised by law. This renders it unnecessary to inquire whether the allowance to the administrator was legally made, or whether the defendant has placed himself in any attitude to question its correctness, in this collateral manner. Judgment affirmed.