Gibbs v. Shaw

By the Court, PAINE, J. Without passing upon any of the other objections to the validity of the sale of real estate by the first administrator, Wells, we think that sale must be held void because the record fails to disclose any notice to the heirs at law of the time and place of hearing the application. The statute required such notice to be given before any such application should be heard. Statutes of 1839, p. 317, sec. 29. The record offered to sustain that sale contains no proof whatever that any notice was given. The only thing upon which it could be assumed is a fragment of a recital, in the order granting the license, to the effect that it appeared to the judge that the notice had been “ published in the Wisconsin Enquirer,” but leaving'blanks at all the places where the facts should have been specified showing such publication to have been according to the statute. And without determining whether a complete recital of all the facts necessary to show a proper notice, in an order granting a license by a probate judge, would be sufficient to sustain the proceedings, in the absence of any other proof of notice in the record, it seems clear that such a recital as this cannot be so, it being evidently incomplete on its face, and failing to show or even recite the necessary facts. The question then is, whether an administrator’s sale under a license from the probate court can be sustained, where the record fails to show notice to the heirs at law as required by [202] the statute ? And we are of the opinion that it cannot be. There may be some cases where it is intimated that such notice is hot jurisdictional. But we regard the opposite doctrine as established by the weight of authority and resting upon the soundest principles, and that it is also established that the records of probate courts must show jurisdiction in order to sustain their proceedings. See the cases cited where this question is alluded to, in the case of Stark et al. vs. Brown, 12 Wis., 582. See also Dakin vs. Hudson, 6 Cowen, 221; Corwin vs. Merritt, 3 Barb., 341. The judgment is affirmed, with costs.