Godfrey v. Dwinell , 40 Me. 94 ( 1855 )

Appleton, J.

It may be conceded, as is contended by the

counsel for the defendant, that a court of equity would decree against the defendant a specific performance of the,contract in suit, yet it would by no means follow from that concession, that the present action may not be maintained.

The contract between the plaintiff’s intestate and the defendant, is a chose in action, which by operation of law vests in the administratrix. The plaintiff having given bonds for the faithful performance of her official duty, has the rightful control over it. She was the proper person to demand its performance. She has made such demand, and the stipulated conveyance has not been executed.

By R. S., c. 112, § 28, it is provided that the Judge of Probate “may authorize any executor or administrator of any deceased person, whose estate is subject to his jurisdiction, to execute deeds, in order to carry into effect bonds, agreements, or covenants, in writing, whether sealed or not, whenever it shall be made to appear to them on petition of the person contracted with as aforesaid, or by his heirs or assigns, or personal representatives, that the deceased in his lifetime, entered on any such contract to convey real estate to him, but was prevented by death/’ &c. The authority of the Judge of Probate being in such case had, the conveyance is valid.

By the last clause of the same section, it is enacted, that “ whenever any executor or administrator shall receive any such conveyance, he shall stand seized of such estate, to the same uses and for the same purposes as he may be of real estate set off to him on execution.” It will bo perceived that while the sanction of the Judge of Probate is necessary to legalize a conveyance from an executor or administrator, it is not to receive such conveyance. By virtue of his position as executor or administrator, he may receive it. Receiving a conveyance, it necessarily follows that he may surrender or cancel the contract which has been performed by the execution and delivery of the deed in accordance therewith. The land conveyed in such case would be assets in the hands of the executor or administrator, to be held as assets of the estate, and to be disposed of in accordance with the provisions of R. S., c. 108, § § 26, 27, 28.

The defendant, upon demand, refused to execute a deed of the premises which he had contracted to convey. Had a conveyance been made to the administratrix, the statute provides for its appropriation as assets to meet the debts of the estate or for its distribution. The defendant refusing to execute a conveyance, it was for the administratrix to determine the remedy to be pursued. She might, by proceedings in equity, compel a conveyance, or by a suit at common law obtain compensation in damages of the defendant for his refusal to convey. In one alternative she would hold the land, in the other the damages, recovered in trust, to be disposed of according to law.

As the defendant, when called upon, refused to convey, it is not for him to take exceptions to the mode in which redress is sought. If the administratrix has in any respect acted unadvisedly or negligently, it is a matter regarding only those interested in the estate.

The action is legally maintainable, and a default must be entered.

Defendant defaulted.