Yeomans v. Brown , 49 Mass. 51 ( 1844 )

Wilde, J.

It was proved at the trial, that the demandants had been licensed by the court of probate to sell so much of the testator’s estate as would raise the sum of $ 2787-31, for the payment of debts and charges of administration. The action was brought before making any sale, and is founded on the Rev Sts. c. 71, § 12, which provide that an executor or administra tor, licensed to sell any lands, fraudulently conveyed by the deceased, or any to which he had a right of entry or of action, may first obtain possession thereof by entry, or by action, and may afterwards sell the same.

Several objections were made by the tenants to the sufficiency and validity of the license, and the case was reserved for the consideration of the court on these objections. The first and principal objection is, that the license was granted without notice to the tenants, who were in possession of the premises, having a title thereto by disseizin, as alleged in the writ, and so were entitled to notice of the demandants’ application for the license. But we are of opinion, that according to the true meaning of the Rev. Sts. c. 71, ■§> 8, no such notice is required. The statute requires that no such license shall be granted, until notice shall have been given “ to all persons interested in the estate.” The word “ estate ” does not mean the land to be sold, but the title of the testator. This is the strict meaning of the term. It denotes the interest a party has in lands, tenements and hereditaments ; as an estate for life or in fee, &c. It is true that it is sometimes used loosely, by way of description, as denoting land But we cannot consider it as intended to be so used in the statute. It cannot be supposed that the legislature intended to au thorize a stranger to the testator’s title to interpose objections to the settlement and disposition of his estate. The tenants are alleged to be in possession wrongfully and by disseizin, which negatives their having any right and title derived from the testator. If they had a title under a fraudulent conveyance from the testator, they might have been entitled to notice, as such a title would be valid against the heirs. But the tenants have no title under the testator, or against the heirs, if the averments in the declaration are taken to be true; and they are to be so taken, in reference to the present question. It is for the tenants to show that they were entitled to notice of the demandants’ application for a license; and this we think they have failed to do.

It was also objected, that the application to the judge of pro bate should have set forth the value, condition, and description of the several parcels of the estate of which the testator died seized, and that of which he died disseized; so that the judge of probate might have decided and directed what specific part of the estate should be sold. It is true that by <§> 3 the de mandants might have set forth in their application the value description and condition of the estate, or such part thereof as they proposed to sell; but they were not obliged so to do. So the court may, in all cases where it is not necessary to sell the whole estate, decide and direct what specific part of the estate shall be sold ; but the court is not bound so to decide and direct ; nor has this been the usual practice. In Hays v. Jackson, 6 Mass. 149, it was decided, that on the application of an executor for license to sell the real estate of the testator, for the payment of debts, the court may direct the sale of any specific part of the estate, for the purpose of marshalling the assets, where there are different interests in the claimants under the will, or between them and the heirs. And the clause in the Rev. Sts. c. 71, § 3, was undoubtedly introduced in reference to such cases. But the language is not imperative, requiring a specific direction of the part to be sold, in every case of a sale of a part only of the real estate. It provides that an executor or administrator shall set forth in his petition the amount of the debts due from the deceased, as nearly as they can be ascertained, the value of the personal estate, &e.; and if it shall be necessary to sell only a part of the real estate, he may set forth the value, description and condition of the estate, &c. That this latter clause was not intended to be imperative on executors and administrators, in all cases, seems to us to be obvious. The words of a statute are to be understood in their ordinary meaning and acceptation, unless it appears from the context that they were not intended to be so understood. But the application for the license does set forth every thing essentially necessary for the information of the judge of probate, in order to his deciding the question, whether it was a case requiring him to decide and direct, in the exercise of his legal discretion, what specific part of the estate should be sold. The application sets forth the description and condition of the real estate, although it does not expressly set forth the value, which is not material, unless the statute is to be so construed as to make it indispensable in all cases ; which cannot be admitted.

Nonsuit taken off, and a new trial granted.