Doolittle v. Holton , 28 Vt. 819 ( 1856 )

The opinion of the court was delivered, at the circuit session in September, by

Redeield, Ch. J.

This case has been a good deal examined by the court at the former hearings. The only difficulty which seemed ever to exist, as matter of fact, in regard to tlie regularity of the administrator’s sale, was as to the license in fact being issued to the administrator de bonis non. One appearing of record to the first administrator, and none to the second, raises a very natural doubt whether the sale was not, in fact, made Upon the former license. The necessity of some sale of real estate seems to have been apparent, from the debts exceeding the amount of the per-‘ sonalty. The probate court did order a sale of the real estate, i. e., the farm in question, in general terms. This would be a sufficient ground from which to presume the necessity of the sale. Indeed* after such an order, and the actual sale, we should scarcely allow an inquiry into the foundation of such an order. That being a matter within the exclusive jurisdiction of the probate court, unless the order showed, upon its face, that it was made for some other purpose than the payment of debts, or when other means sufficient existed, we should, I think, not allow the jurisdiction to be defeated, by proof out of the record. And all deficiencies in the recitals of the order will be supplied by intendment.

And, as it was competent for the court of probate to sell the whole real estate, the same being difficult of division, if they deemed it expedient or conducive to the interest of the estate, a general order of sale of this real estate being made, and the whole being sold, it should be, perhaps, presumed that the sale proceeded upon such judgment and discretion of the probate court, or, upon the necessity of selling the whole for some sufficient reason.

If a license to sell be shown, it will be presumed to have been upon sufficient previous notice, and the other preliminary proceedings to have been regular, the bond and oath of office, &c., as in other cases. The presumption, omnia rite acta, applies with especial force to the proceedings of courts of probate. And, after so great a lapse of time, although we cannot make any presumption against the plaintiffs, on the ground of possession merely, we certainly should be at liberty to take into account the enhanced difficulty of showing the true state of the facts, as they existed at the time, and the imperfect manner in which the business is known to have been transacted, at that early day, and the probability that if such an order had existed, it might not have been recorded or preserved, and the extreme improbability that if such an order had existed, and had not been recorded or preserved, that its existence could now be shown.

No part of the evidence admitted in the trial in the county court is specially objected to. It is said it is slight, circumstantial and fanciful, in general terms. But when we come to examine it in detail, and to look into the charge of the court, it seems to us the trial was managed with very considerable care and circumspection. It may be true that the jury have found the fact of a license to Jenks upon very slight grounds, and that the rules for weighing the evidence given to the jury are calculated to make the most of it. We think that is so, and we think it commendable, both in the court and jury. It is certainly very much to be regretted, that after such a lapse of time, when there is every reason to believe that the administrator accounted for the avails of the whole sale, and thus the price of the land came, very obviously, to the use of the heirs, that any technical defect in proceedings should defeat the title, and bring loss and ruin upon those who have trusted to the regularity of these judicial sales.

We could not, we think, suggest any improvement in the mode in which the county court have carried out the purpose of this court, in granting the new trial; ^* and, the result is certainly one which might have been, and perhaps ought to have been expected.

Judgment affirmed.

* See same case, 26 Yt. 588.