Hannum v. Day , 105 Mass. 33 ( 1870 )

Morton, J.

This is a writ of entry brought under the provisions of Gen. Sts. c. 102, §§ 12, 13. In an action of this nature the demandants do not claim upon the ground of any title in themselves. They can maintain it only by virtue of the power conferred on them by the law, and must show that they have pursued the directions of the statutes. If they were not legally licensed to sell land of their intestate for the payment of his debts, they cannot maintain this action. Verry v. McClellan, 6 Gray, 535.

It appears that both the demandants, Edson F. Hannum and Almira B. Pomeroy, were duly appointed and qualified as administrators, but that the petition for leave to sell real estate for the payment of debts was signed by Hannum alone, and the license to sell ran to him alone. The question is thus raised, whether a judge of probate, in cases where there are two or more executors or administrators, has the power to license one of them to sell land for the payment of debts, upon his sole petition. This question depends entirely upon the construction of the existing statutes, and not upon any considerations of policy.

The first section of chapter 102 of the General Statutes provides that, “when the personal estate of a deceased person is insufficient to pay his debts with the charges of administration, his executor or administrator may sell his real estate for that pur- • pose, upon obtaining a license therefor and proceeding as herein provided.” The third section provides that, “ to obtain such license, the executor or administrator shall present to the court a petition setting forth the amount of debts due.”

In many of the provisions of our statutes defining and regulating the powers and duties of executors and administrators, the term “ executor or administrator,” in the singular number, is used when it is clear that it is intended to be used collectively, to designate all the persons appointed to administer • the estate. In cases where two or more persons are qualified as executors or administrators, their powers and duties are joint. It is true that in some matters, as in the collection and payment of debts, and the disposition of personal property, one executor may act, but his acts are deemed to be the acts of all. Generally they must act jointly. A majority of the court is of opinion that all the executors or administrators should join in a petition for a license to sell real estate for the payment of debts. The expressions, “ his executor or administrator,” in the first section, and “ the executor or administrator,” in the third section, are used collectively to designate all the executors or administrators, when there are several. In the construction of our statutes, “ words importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular.” Gen. Sts. c. 3, § 7. We think the intention of the legislature was, in this important duty, as in the other duties in settling the estate, to require the joint action, judgment and responsibility of all the executors or administrators.

We are therefore of opinion that the license granted to Hannum upon his sole petition was invalid. It follows that the demandants cannot maintain this action, and that no amendment would enable them, or either of them, to do so. This view renders it unnecessary to give a construction to the deed under which both parties claim ; and as that question may hereafter arise between other parties who have had no opportunity to be heard, we express no opinion upon it.