Smith v. Dutton , 16 Me. 308 ( 1839 )

The opinion of the Court was prepared by

Weston C. J.

The first reason of appeal is expressly removed by stat. of 1822, c. 198, the interest of the Judge as creditor, being less than one hundred dollars.

The petition, marked B, was an application, in June, 1837, to the discretion of the Court, to open the account of the administra-trix on the estate of Samuel H. Dutton, deceased, which had been settled the preceding April. That account was presented in Jan. 1837, and notice to all concerned, was given in a newspaper at Bangor, appointing the last Tuesday of April following, for the examination of the same, at which time it was examined and allowed. The Judge upon the petition of the appellants, not being satisfied that any error existed, declined to open the account. We have no doubt the Judge might have done so, for the purpose of correcting a manifest mistake. Stetson v. Bass, 9 Pick. 27. But upon an examination of the case, we perceive no sufficient reason for reversing his decree, upon this point. The estate of the deceased was rendered more valuable, by the extinguishment of the mortgage, with which it was charged. As the estate was solvent, the creditors were entitled to be paid, principle and interest, and the administratrix would equitably stand, by substitution, in their place. So with regard to the improvements on the estate, they added to its permanent value; and as this expenditure exceeded very little, if at all, the rents and profits, we are not prepared to determine, that there is such a manifest error in its allowance, or in the commission allowed in the payments and disbursements, as requires that the accounts should be opened. But the reason decisive with us, for declining to reverse the decree is, that ample and public notice was given, prior to the allowance of the account; and it has not been made to appear to the Court below, or to this Court, that justice requires, that it should be again opened. Samuel Smith, one of the appellants, states in his affidavit, that the first notice he had, that his interest was liable to be affected, was upon publication of notice of the petition of the administratrix to sell the real estate of the deceased. As this notice was given in a public newspaper, as ordered, between the last Tuesday of April, and the last Tuesday of May, the allowance of the account in April, upon which that petition was based, must have come to his knowledge before the expiration of thirty days, and in season for him to have claimed an appeal, if by law he was entitled to interpose ; and this is another reason, why that allowance should not now be disturbed.

Regarding the allowance of the account as settled by the decree of April, 1837, the principal remaining objection is, to the license, granted to the administratrix to sell a portion of the real estate of her intestate, upon the ground, that, at that period it was not liable to be sold; especially after a large portion of it had been alienated by the heirs. The statute has fixed no direct limitation, within which such license must be granted. But it has provided, that no executor or administrator shall be held to answer to any suit, that shall be commenced against him in that capacity, for more than four years after his acceptance of the trust; provided he shall give public notice of his appointment, in the manner provided by law. Statute of 1821, c. 52, § 26. In consequence of this limitation, the Courts have in their discretion, with certain exceptions depending on peculiar circumstances, refused to grant such license, unless application for it is made, within a reasonable time after the termination of the four years. Nowell v. Nowell, 8 Greenl. 220; Nowell v. Bragdon, 14 Maine R. 320, and the cases there cited.

It appears, that the administratrix was appointed on the twenty-eighth of June, 1831. When she accepted the trust, or when, if ever, she gave public notice of her appointment, does not distinctly appear. James B. Fislce deposes, that prior to his appointment of commissioner on the same estate, which was on the twentieth of June, 1832, he saw posted in a public place, a notice in the usual form, having the signature of Marcia Dutton, as administratrix. Assuming that this is competent and sufficient evidence, that she gave notice of her appointment, in the mode prescribed by law, it cannot be referred with certainty to a period earlier, than at or about the time stated by the deponent. If so, the four years expired in June, 1836. It must be borne in mind, that our statute, unlike that of Massachusetts, subjects the real estate to be sold, if necessary, to defray the charges of administration. In January, 1837, seven months after the expiration of the four years, the ad-ministratrix presented her final account for examination. An application to soli the real estate followed, immediately upon the allowance of the account, which was passed upon, as soon as due notice could be given to all concerned.

The license was opposed by the appellants; but was finally granted in December, 1837. It does not appear, that the adminis-tratrix had been hastened in her movements by the Judge, or by any person or persons, interested in the settlement of the estate. A portion of it at least was under her charge and management, from which she received rents and profits, which were principally applied to improvements. The Judge of Probate, who may be presumed to have become wTell acquainted with the nature and condition of the estate, in taking cognizance of the discharge of the duties of a trust emanating from himself, was satisfied, that the application for a license was made within a reasonable time. And this Court perceives nothing in the case, which ought to lead them to a different conclusion. When the appellants purchased of some of the heirs a large portion of the estate, in November, 1835, if well advised, they must have been aware, that it was liable to be sold, upon the final settlement of the estate, unless that settlement was unreasonably delayed. It cannot be pretended, that upon the principles, which have governed the Courts, the lien upon the estate had then been dissolved. Purchasing at that early period, they may well be regarded, as equitably taking the place of the heirs.

The decree of the Court below is, in both cases affirmed.