140 A. 467 | R.I. | 1928
Mary E. Barlow of Providence died intestate leaving a husband (appellee) and two children (appellants). Mr. Barlow was appointed administrator of his wife's estate by the Municipal Court of Providence. In due time he petitioned said court for authority to sell three parcels of her real estate because her personal property was insufficient to pay her debts, funeral expenses and *118 charges of administration. It appeared in the petition that said real estate was subject to Mr. Barlow's right of curtesy and that two of the parcels of real estate were subject to a mortgage for $1,900. The court entered its decree authorizing the sale of two of the parcels of real estate at private sale for a gross price of not less than $3,318, exclusive of the curtesy of Mr. Barlow. The decree provided that the mortgage might be cancelled from the proceeds of the sale. Appellants claimed an appeal from this decree to the Superior Court. After trial in the Superior Court decision was entered denying the appeal. Appellants then brought their appeal to this court by their bill of exceptions the only exception stated being that the decision denying their appeal was erroneous and ought to be reversed.
Appellants contend that the court erred (1) in authorizing said real estate to be sold for $3,318; (2) in authorizing the amount of the mortgage indebtedness to be deducted from the proceeds of the sale. These contentions can not be sustained.
As to the first contention the necessity for the sale of the real estate is beyond question as it was proved that the personal property of the deceased was insufficient to pay her debts, funeral expenses and charges of administration and that a sale of her real estate was required for the purpose of making such payments. § 5338, G.L. 1923. As the court authorized the administrator to sell the real estate at private sale it was necessary for it to fix a sum below which the sale should not be made. § 5344, G.L. 1923. This the court did.
The second contention is based upon the claim that because Mr. Barlow signed the mortgage note with his wife and released his right of curtesy in said real estate when he signed the mortgage deed, he is entitled to his curtesy only in the value of the equity of redemption in said real estate and not in the whole value thereof and that the court erred in permitting the amount of the mortgage note to be deducted from the proceeds of the sale of the reversion in said *119 real estate. Upon the death of Mrs. Barlow her husband became entitled to the possession, use and enjoyment of all of the real estate of which she died seized and possessed for and during the term of his life as tenant by the curtesy consummate. The reversion in said real estate vested in her children subject to its being sold by her administrator, if necessary, for the payment of her debts.
The estate of tenant by the curtesy is well recognized in this State. In re the Voting Laws,
The exception is overruled. The case is remitted to the Superior Court for further proceedings following the decision.