Purrington v. Dunning , 11 Me. 174 ( 1834 )

Mellen C. J.

The administrator was duly licensed to sell the estate of the intestate to the amount of eleven hundred dollars for payment of debts and incidental charges. It is contended that the bond given by the administrator is not predicated on the license, but in reality contradicts it. There certainly is no contradiction ; in the condition of the bond it is recited that the administrator had been licensed to sell the estate of the deceased to the amount of ten hundred and seventy-seven dollars and ninety-nine cents for payment of the debts of the deceased, omitting the mention of “ incidental charges.” He was certainly licensed to sell to the above amount, being a sum less than that named in the license. Besides, it appears that the above sum' of $1077,99 was the precise amount of the list of claims against the estate, allowed by the commissioners; and to this the recital in the condition must have had reference. We cannot allow this variance as having any effect to invalidate the sale. But if our opinion on this point were different, still there is another ground on which the motion for a new trial must fail, because the report states that the defendant does not claim under the intestate as one of l)is heirs or in any other manner. It has long been settled that where an executor or administrator has been duly licensed to sell the estate of a testator or intestate, the regularity of his proceedings in making the sale under the license is not a subject of inquiry by strangers, but only by those who have a title or interest, or claim to have in the lands sold. This principle is expressly laid down in the case of Knox & al. v. Jenks, 7 Mass. 488, and a similar principle is recognized in the case in 2 Greenl. 218, in respect to the want of a bond. In the above case of Knox & al v. Jenks, there was no proof that the officer, appointed to make the sale, had been duly sworn. This construction by the Supreme Court of Massachusetts of a statute, of which ours is a transcript in relation to the provision we are considering, we feel bound to respect, because our Legislature must be considered as having adopted the construction by enacting the law, almost ten years after that construction had been made. We believe the practice has always been adhered to in this State, conformable to the above construction. There must be

Judgment on the verdict.