Ela's Appeal , 68 N.H. 35 ( 1894 )

Extended consideration of this case is unnecessary. Few words need be expended to show that there is no legal or equitable ground for the plaintiff's motions.

1. G. W. Ela's appointment as administrator of his deceased brother's estate having been made by a court possessing general jurisdiction to grant administration of the estates of deceased persons, and upon a petition asserting the essential jurisdictional facts, it was a judicial determination that the facts necessary to give the court jurisdiction existed, and cannot be collaterally avoided. Spaulding v. Groton, post, decided at this term; Vanfleet Coll. Attack, ss. 637-647; 33 Am. Dec., note, 241-243.

2. If the petition was false, then the appointment was procured by it fraud upon the court, which the plaintiff, as the representative of and a privy to the petitioner, cannot now set up to defeat the ends of justice. Tebbetts v. Tilton, 31 N.H. 273, 287; Adams v. Adams, 51 N.H. 388, 397.

3. Assume that the probate court had no power to make the appointment for the reason that the deceased left no estate in this county, the subsequent bringing of the property here by the administrator would confer jurisdiction of the subject-matter upon that court, and authorize it to charge him with the property, in the exercise of its common-law jurisdiction over the estates of deceased persons. Stearns v. Wright,51 N.H. 600, 605, 611.

4. Another consideration fatally adverse to the plaintiff is that a party cannot set up the invalidity of a decree under which he has obtained and holds property as a defence to an accounting for that property. It is useless to argue such a self-evident proposition. What is clearly apparent need not be proved.

5. Finally, it cannot be successfully controverted that there is jurisdiction of the property and Ela's administration of it somewhere, and if this be so, it is clear there can be jurisdiction nowhere if not in the probate court for this county.

Motions denied.

All concurred.