Bates v. Avery , 59 Me. 354 ( 1871 )

Walton, J.

An administrator may recover damages, in an action of trespass, of a person committing waste or trespass on the lands of the deceased, when the estate is insolvent. R. S. c. 66, §20.

But in this case, the defendant denies that there is any evidence that the estate of the deceased is insolvent; he says that the only proper evidence of insolvency is the documentary evidence from the probate office.

Such is undoubtedly the law ; but in this case the administrator was allowed to state without objection, that “ the estate was, represented insolvent Aug. 4, 1868and that “ a license from the judge of probate to sell the real estate was issued Aug. 4,(1868;” and the conclusion of the report is, that “ if, upon the foregoing facts and evidence, the action is maintainable, a new trial is to be granted; otherwise a nonsuit is to be entered.”

In this state of the case, it seems to us that, for the purpose of determining whether or not the action is maintainable, we are to regard it as an admitted fact, that the estate is insolvent.

We see no difficulty in maintaining the action if the estate is, in .fact, insolvent. Action to stand'for trial.

Appleton, C. J.; Cutting, Kent, Dicicerson, and Danforth, JJ., concurred.