Hill v. Treat , 1877 Me. LEXIS 88 ( 1877 )

Walton, J.

The principal question is whether the title of one, who purchases of a testamentary trustee, is defeated by the insolvency of the testator’s estate and a sale of the property by the administrator for the payment of debts.

We think it is. All testamentary titles are liable to be thus defeated. The title of a devisee is defeated by such a sale. So must be the title of one purchasing of him. The same must be true of the title of a testamentary trustee, and of one holding under him. This is a necessary result of the rule of law that the testator’s property is primarily holden for the payment of his debts, and may be sold by his administrator for that purpose. Such a sale necessarily defeats all testamentary titles. The right to dispose of property by will is subject to this express statutory provision, that no part of the estate can be exempted from liability for the payment of debts, if required. R. S., c. 74, § 7.

The title of Robert Treat must therefore fail, unless it can be supported upon some other ground than the power of sale contained in Hayward Peirce’s will. The sale by the administrator under license from the probate court rendered that source of title inoperative.

It is suggested that perhaps the sale may be sustained upon the ground that it was made by Waldo T. Peirce, as surviving partner, as well as by virtue of the authority contained in his brother’s will. We think not. Such a sale could not legally be made unless the surviving partner first qualified himself to administer upon the partnership estate by giving the bond required by law; nor unless he first obtained a license to make the sale from a court of competent jurisdiction. Cook v. Lewis, 36 Maine, 340. Buffum v. Buffum, 49 Maine, 108. No such bond appears to have been given in this case; nor is it claimed that any such license was obtained.

The result is that Robert Treat’s title to so much of the land attempted to be conveyed to him by Waldo T. Peirce, as formerly belonged to Hayward Peirce, must be regarded as having failed; and to this extent the right to maintain this action to recover the price agreed to be paid for it has also failed; but for the balance of the land conveyed the action is maintainable; and the amount to be recovered must be determined by some proper person to be appointed by the court at nisi prius, as agreed by the parties in the report of the. case.

Action maintainable in part, amount to be determined by a person to be appointed by the court at nisi prius, as agreed in the report, upon the principles stated in the opinion.

Appleton, C. J., Dickerson, Barrows and Daneorth, JJ., concurred.