Gordon v. Gordon , 1875 N.H. LEXIS 97 ( 1875 )

As the heirs and representatives of a person deceased are only entitled to that portion of their ancestor's estate which remains after payment of all just debts, it follows that the interest of such heirs and representatives imperatively demand that means should be provided by which the ancestor's real estate, if needed to pay debts, should at the earliest practicable moment be appropriated, as far as necessary, to that purpose. It is also quite necessary that the purchasers of real estate so sold should have reason to place confidence in the title they would so acquire, as there is hardly anything so fatal to the marketable value of property as uncertainty as to the title acquired by the sale.

In order to produce this result, certain proceedings have been authorized by our statute law, which, whether technically proceedings in rem or not, if complied with, do absolutely pass to the purchaser under the administrator's sale all the right of the deceased in the property sold.

Of course the interests of persons under age are supposed to be amply protected by their guardians.

For the further protection of the parties in interest, and in order to leave as little occasion as possible for disturbing sales effected in due form of law, it is provided by Gen. Stats., ch. 182, sec. 12, that fraudulent conduct in the sale of real estate by an administrator shall be deemed a breach of the administration bond; so that ample redress may be had without the necessity of interfering with such sales. The bill in this case does not allege any informality in the proceedings, or any want of due notice of the proceedings. It in substance alleges that there was personal property which might have been applied in payment of the debts, and alleges that there was no sufficient proof of indebtedness; but it alleges no fraud which could not and ought not to have been tried at the hearing, so that the opening of this case would have been simply opening the decree for a re-hearing. It is true that the bill does allege a collusion between the administrator and William Gordon to have a false and fraudulent claim presented to the commissioner in insolvency, and allowed by him, but the petition does not allege any circumstances tending to show that the nature of this claim of indebtedness was not known to the parties in interest, or that the wrong might not have been remedied by an appeal from the commissioner's allowance, or show any reason why the decree of the probate court accepting the commissioner's report should be impeached in this collateral way. It should be added, also, that this question of the indebtedness of the estate was one which was open for trial, and should have been tried at the hearing of the petition for license to sell the real estate.

It appears to me, therefore, that this bill does not allege any matters as ground for impeaching the administrator's sale which have not already been duly and properly tried, and that ought not, according to the doctrine of Adams v. Adams, cited by my brother LADD, to be considered so far settled as to preclude further controversy.

I am therefore of opinion that the demurrer should be allowed.

SMITH, J. I am of the same opinion. A sale made pursuant to a license from the court of probate cannot be impeached collaterally so as to affect innocent purchasers or their grantees. The administrator [i]s not made a party to this suit, and the plaintiffs in their bill do not charge Bell and George, or their grantees, with any knowledge of or participation in the alleged collusive agreement between William Gordon and the administrator. In order to authorize a decree in the probate court granting license to sell, it was requisite to prove that the sale was necessary to pay debts. That was the question directly in issue in that court; and from the fact that license was granted, the only inference is, that that fact was proved to the satisfaction of the judge of probate. From his decision an appeal could have been taken by these plaintiffs or their guardians to this court, and the question have been tried here; but no appeal having been taken, the matter became res adjudicata, and cannot now be reexamined. Hall v. Woodman, 49 N.H. 295.

Grignon's Lessee v. Astor, 2 How. 320, and Thompson v. Tolmie, 2 Pet. 169, are authorities directly in point, that the granting of a license to sell is an adjudication upon all the facts necessary to give jurisdiction to the probate court; and whether they existed or not is wholly immaterial, if no appeal is taken. A purchaser at a sale under such decree is not bound to look beyond the decree. He is not to see whether the court was mistaken in the fact that there were debts to be paid from the sale. Such decree is reversible only on appeal, and not collaterally in another suit.

It is equally clear that the administrator's account cannot be reexamined in this way. He is not a party to this bill, nor is this an appeal from the probate court allowing him the items with which it is claimed he has been wrongly credited.

Demurrer sustained.