Pratt v. Houghtaling

Marston, C. J. This was an action of ejectment, brought by one of the children and heirs-at-law of Pul of D. Orego, deceased, to recover her interest in lands of which he died seized. The defendant claims title under an administrator’s sale made in 1861, and also to be a bona fide purchaser. The plaintiff claims that no debts were ever proven against the estate; that the real estate of the deceased could only be sold to pay debts; and that at ' the time license was granted to sell the real estate the probate court had lost all jurisdiction in the premises by lapse of time. [459] Crego died August 29, 1856. No commissioners were appointed to allow claims. Eliza Orego, executrix,* November 16, 1857, petitioned the probate court for license to sell certain real estate, alleging therein the existence of debts amounting to $500. License was granted February 1st, 1858, to Joseph Jones, administrator de bonis non, the executrix having married, and a sale made March 26, 1859, which was afterwards vacated and set aside by the probate court. May 7,1861, Joseph Jones, administrator, filed a petition for license to sell the real estate, alleging therein debts to the amount of $500, which was heard June 18th, 1861, license granted and a sale made thereunder August 3d, 1861, which was confirmed August 15th, 1861. If the probate court had jurisdiction to hear the petition filed May 7th, 1861, and grant a license thereunder, then under section 4596, 2 Comp. Laws, the defendant is protected. No commissioners were appointed for the allowance of claims, nor did the judge of probate appoint any time or place for the allowance of claims by himself; and until some provision was thus made to give creditors an opportunity to present their claims, we cannot say they were cut off, under the facts and circumstances of the present case. That debts existed against the estate, and were informally recognized as valid and subsisting by the probate court, cannot be controverted. The probate court, under the statute, could have allowed the original executrix four years to dispose of the estate and pay the debts, and an administrator de bonis non having been appointed, six months’ additional time could have been given him, besides the time between the date of his appointment and the time the executrix was first incapacitated from acting. The time which could thus have been allowed would extend to August, 1861, and in this case the petition and license under which the sale was made, were previous to that time. The case had not therefore passed beyond the jurisdiction of the probate court, and although it does not appear that the time for thus settling [460] the estate had been extended, jet this is not necessary. A failure to so extend would not deprive the court of jurisdiction. Even then if the sale could thus be inquired into in a case like the present, still it does appear that the court was acting within the limits of its jurisdiction, and action thereunder was valid. Where an estate has not been formally closed, we do not wish to' be understood as holding or intimating that a license granted after the time fixed by the statute would be necessarily void, in a case like the present, when inquired into collaterally. • The judgment must be affirmed with costs and the record remanded. The other Justices concurred. Footnotes [*] The executrix was appointed Nov. 7, 1856.