In re Worcester's Estate

The opinion of the court was delivered by Taft, J. In the course of administration it became necessary to sell the real estate of the deceased. License to sell it at public auction or private sale was duly granted. It was sold at public auction to the highest bidder. After the sale and before the making of the deed, the administrator was informed that he could sell the property for two hundred and seventy dollars more than the price it sold for at auction. No memorandum in writing was made, of the auction sale, and therefore [425] it is claimed that the sale was, under sec. 981, R. L., not binding on the administrator. The administrator believed the contract of sale binding upon him, and consummated it. We are asked to say upon the facts reported, that he should be charged with the price which, it is contended, he might have received. The vendee at the auction sale was ready to complete the purchase, and insisted upon so doing. The evidence tended to show that the administrator had doubts as to whether the offer of the increased price would be adhered to, and whether the sale made at auction, if he attempted and failed to make another, might not be lost. No neglect of duty nor bad faith on the part of the administrator is found by the referee. It is not found that he could have completed the sale at the increased offer. We fail to see, bn the facts reported, any legal reason for charging the administrator with the amount claimed, although the farm sold for less than its real value. The amount for which an administrator should be charged in case of the sale of property belonging to an estate, is not the value of the property, but what he receives for it, acting in good faith, in the exercise of ordinary care and prudence, and free from all neglect. We cannot hold as matter of law that an administrator should plead the Statute of Frauds in order to avoid a contract which he, in good faith, has made, and believes to be morally and legally binding upon him. Upon the facts reported, the commissioner did not err in declining to charge the administrator with the two hundred and seventy dollars. The appellant concedes that all the other items credited the estate are correct, unless found otherwise upon trial, and the referee reports that it was not so found. As to the items charged the estate, no question is made which would effect the judgment below, save the objection raised by the appellant, that some of the items were paid by funds which were realized from the sale of the homestead, and in fact belonged to her, and to which, as against the estate, she was entitled. At the intestate’s death his real estate consisted of his homo [426] farm of about one hundred and ten acres and a pasture lying near to but not adjoining it, of fifty acres. The whole was encumbered by a mortgage signed by the intestate and appellant, amounting to $1,093.27. The home farm sold for $1,330, and the pasture for $150. The premises were sold by order of the Probate Court, the appellant consenting to the sale. Such consent did not bar the widow of such right in and to the homestead as she took upon the decease of her husband. The homestead was under the burden of bearing its. proportion of the mortgage debt. Lamb v. Mason, 50 Vt. 345; Devereax v. Fairbanks, ibid. 700. It is not clear from the report that the homestead extended to and covered the pasture lot; but conceding that it did, there are still funds enough in the hands of the administrator to pay the widow the amount of her homestead interest, one hundred and thirty dollars and sixty-five cents. What the amount of lier homestead interest is, and whether the appellant can claim it as against the unsettled items of the administrator’s account (items Nos. 12 and 13), are questions not properly before us. All that we decide is that, so far as the account is now before us, no error appears in the judgment below, and the same is affirmed, and the cause ordered certified to the Probate Court.