Merrill v. Harris

Eastman, J. It is contended on the part of the defendant that the nonsuit moved for upon the trial should have been granted; and for the reason, that the license which was granted by the probate court, and which laid the foundation of the plaintiff’s title, was illegally issued. But such is not the conclusion to which we have arrived. The decisions of a judge of probate, regularly made, of matters within his jurisdiction, are, unless an appeal is interposed, conclusive against all the world. Bryant v. Allen, 6 N. H. Rep. 116; and numerous authorities there cited. This doctrine has been frequently recognized in this court, whenever the question has arisen. The proceedings of the probate court, however, must be regular, and upon matters within the jurisdiction of the judge to determine, otherwise they will not be conclusive. Thus it has been held, that upon an application by the administrator of an intestate estate, for license to sell real estate for the payment of debts, there must be an order of notice; and if such license is granted without notice to the heirs, a sale under it will pass no title to the vendee, the [148] statute being explicit that notice shall be given before such license can be granted. French v. Hoyt & al. 6 N. H. Rep. 370. It is said that the license in this case was not regularly-issued; and for two reasons; first, because it did not fix the sum of money to be raised by the sale, and second, because there was no legal evidence of any debt sufficient to warrant it. The section of the statute upon which the first position is founded, is as follows : “ The judge in such license shall fix the sum of money to be raised by such sale, and may, when he shall judge it expedient, specify the tracts or parcels to be sold.” Rev. Stat. chap. 164, § 5. It would seem, perhaps, upon the first reading of this section, that this license was defective, inasmuch as it does not state the amount for which the sale is to be made; and were this the only section in regard to the subject, the position- would probably be correct. But this petition and license are not founded upon .that section of the statute, but upon the third section of the same chapter, which is as follows: “ If the real estate is so situated that-a part thereof cannot be sold, without injury to the persons interested therein, license may, on application, be granted to sell the whole of such estate, though it may be more than sufficient for the payment of said demands.” This petition sets forth that the property is more than sufficient to pay the demands, but that it is so situated that a part of it cannot be sold without injury to the persons interested therein ; and the decree is, that the petitioner have license to sell the whole, according to the prayer of the petition. The petition and decree are thus both according to the third section; and to fix the sum to be raised by such a license would seem to be a contradiction in terms, if not indeed a prohibition of the sale itself. It would at best be entirely superfluous. We think the fifth section must have been intended to [149] refer to licenses generally, where it becomes necessary to sell a part of the real estate of the deceased to pay his debts. In such licenses there is good reason why the sum should be fixed; otherwise the administrator might proceed to sell beyond what was necessary. Accordingly it was held in Adams v. Morrison, 4 N. H. Rep. 166, that if an administrator, having license to raise a particular sum by the sale of land, sells an entire tract for a sum exceeding that which he is authorized to raise, the sale will be void. Different sections of the same act must, if possible, be so construed as to be consistent with each other; and to require the sum to be fixed in a licence of this kind, would be to make the fifth -section inconsistent with the third. The second objection to the decree, that there was no legal evidence of any debt sufficient to warrant it, is also untenable. It being shown that the petition was in due form, and that regular and legal notice df.it was given to the heirs and all concerned, it was a matter within the jurisdiction and discretion of the judge of probate to say whether, upon the evidence furnished him, he would grant the license or not; and the.exercise of his judgment upon that question cannot be inquired into, in this collateral way. His decision was open to appeal^ and its correctness could have been tested in this court, and the decree affirmed or disaffirmed, as the right should appear. Or it was in the power of the heirs to have prevented the license, by complying with the provisions of sec. 4, chap. 164, Revised Statutes. That section provides that “ no such license shall be granted, if the heirs or devisees will give to the judge a bond, with sufficient sureties, for the payment of such just demands and to indemnify the administrator therefrom.” The case of Heath v. Wells, 5 Pick. Rep. 140, cited by the defendant, is easily to be distinguished from the one before us. There, the license was granted to sell to pay debts barred by the statute as to administrators; the suit [150] against the administrator had not been seasonably commenced, and the court said that it was a matter where the probate court had no cognizance; that it was not a case for deliberation or decision by the probate court, and was not within their jurisdiction. In this case there are no such obstacles. But the doctrine even of that case would seem to be in conflict with Hodgdon v. White, 11 N. H. Rep. 209, and we do not intend to say that, according to our practice, there should not have been an appeal. It will be perceived that, according to the view which we have taken of this question, it becomes immaterial whether the proceedings to establish the private claim were legal or not, as its existence or non-existence would not affect the validity of the license. We have not, therefore, considered the matter. The other question raised by the case relates to the competency of the witness, he being a surety on the bond of the administratrix. If this witness was incompetent, it was by reason of some breach in the covenant of- the deed, and of his liability to make good that covenant. Nothing appears upon the case from which we can say that the covenant has been broken; but we may consider the question as though it had been. Before a suit could be maintained upon the'bond, an action would have to be brought and judgment obtained against the administratrix for some failure to administer the estate according to law, as in general all claims must be liquidated, either by confession or judgment, before they can be recovered by suit on a probate bond. Rogers v. Wendell, 5 N. H. Rep. 69. The interest of a surety, therefore, upon such a bond, until there be a suit for some default, which may lead to the prosecution of the bond, must be very remote. In Carter v. Pierce, 1 Term Rep. 163, it was held that a surety on an administrator’s bond was a competent witness for the administrator, to prove a tender in a suit brought [151] against the administrator for a debt due by the intestate; and upon the ground that it was a bare possibility that an action might be brought upon the bond. In that case there could be no doubt of the eventual liability of the surety, in case the administrator should become chargeable with the debt, and should fail to cancel it. And upon that decision the surety here would be competent, even should the court hold that a breach of the covenant in the deed was a matter for which the sureties on the bond would be liable. But we do not so regard the law. The bond of an administrator covers the rights of creditors and heirs of the estate, but it does not go to the extent of the contracts and covenants which the administrator may make with the purchasers of the property belonging to the estate. Such covenants are personal; and such was the covenant in this deed. It was not a liability which the'sureties upon the bond could be required to make good. The witness was therefore competent. Judgment on the verdict,