Bates v. Sargent

The opinion of the Court was drawn up by

Appleton, C. J.

This is a petition, under R. S., 1857, c. 71, § 17, to the Judge of Probate of Washington county, to authorize the administrator of James Sargent to carry into effect a bond given by said Sargent to the petitioner, to •convey certain real estate therein described, upon the performance, on his part, of certain specified conditions. The petition likewise relates to certain other lands embraced in a contract between these parties not reduced to writing. Upon the hearing, the Judge of Probate decreed that the administrator be authorized and empowered to make and execute deeds of the several tracts according to the prayer of the petitioner.

From this decree the appellants, heirs at law of said Sargent, appealed, and the first question presented for consideration is whether the appeal is properly taken.

By R. S., 1857, c. 63, § 19, "any person aggrieved by any order, sentence, decree or' denial of such Judges (of Probate) may appeal therefrom to the Supreme Court, to bé held within and for the same county,” &c. The appellants, as heirs at law, are interested and may be aggrieved if license or authority to sell the estate of their ancestor should be improvideutly granted. A person interested may appeal from a decree licensing the sale of real estate. Smith v. Dutton, 16 Maine, 309. So, from an appeal granting an allowance to the widow, though the amount to be allowed is within the discretion of the Judge of Probate. Cooper, Appellant, 19 Maine, 260. A decree of the Judge of Probate, granting leave to a creditor of an insolvent estate to institute a suit at common law, is subject to the right of appeal. Leighton v. Chapman, 30 Maine, 538. The appeal we think well taken.

In Emery v. Sherman, 2 Greenl., 93, the administrator was the party appealing. It is obvious that he could not be aggrieved, for he might, or might not, execute the deed prayed for by the petition, as he should be advised his duty as a faithful administrator would require.

By R. S., 1857, c. 71, § 17, "when it appears to the Judge of Probate having jurisdiction, that any deceased person iii his life time made a legal contract to convey real estate and was prevented by death from so doing, and that the person contracted with, a petitioner, has perfonned, oris ready to perform the conditions required of him by the terms thereof, he may, on the petition of such person, his heirs, assigns, or his legal representatives, authorize the executor or administrator of the deceased to execute deeds to carry said contract into effect,” &c.

This section relates only to legal contracts in force at the death of the obligor, the performance of which was by his death prevented. It enables the Judge of Probate, in such cases, to empower the administrator, upon legal performance of the conditions required of the person with whom the contract is made, to convey the real estate agreed to be conveyed. It was not intended to oust this Court of its equitable jurisdiction or to limit or restrict its exercise.

At the death of Sargent, the remedy of the petitioner,, if any, was by bill in equity. The conditions of the bond had not been complied with in the life time of the obligor. The performance of those conditions had not been prevented by the death of the obligee. He does not, therefore, bring himself within the statute upon which he relies, whatever may be his equitable rights arising from payment since the forfeiture of the bond.

The verbal contract between the parties, referred to in the petition, is void by the statute of frauds, and cannot be enforced.

As the petitioner is ready and willing to perform the contract on his part, costs are not allowed either party.

Decree reversed — without costs to either party.

Cutting, Davis, Kent and Walton-, JJ., concurred.