Bean v. Bumpus

22 Me. 549 | Me. | 1843

The opinion of the Court was drawn up by

Tenney J.

— The appellant married the widow of Ebenezer Smith, deceased, and was the guardian of Polly Smith, his daughter., at the time of her intermarriage with the appellee, who on her death took administration of her estate. He now claims to receive from the appellant the goods and effects of his late wife, after deducting the guardian’s account, which has: been allowed. This claim is resisted upon the grounds set forth particularly in the reasons assigned for the appeal from1 the decree of the Judge of Probate, which was, that he pay over the amount of the estate remaining in his hands to the1 appellee, the administrator of said estate, to be administered upon according to law.

It is insisted that the Judge of Probate had no authority to grant administration at the time it was done, and that the same is void. 1st. Because notice that the appointment was to be made, was not previously given; and 2d. Because there was no property, goods or estate whereon the same could legally operate. The Judge of Probate is required to grant administration of intestate estates to the widow, husband, next of kin, or husband of the daughter of the deceased, or two or more of them as he shall think fit, if he be of the age of twenty-one years and in other respects, in his opinion, is suitably qualified for the trust. Rev. Stat. c. 106, *§> 1. No notice is required to be given previous to the appointment of either of the persons named in the section referred to; and we believe it has not been the practice with Judges of Probate to give such notice. If other persons, however, are appointed to the trust, those who are first entitled to letters of administration, if suitably qualified, are required to be cited by the Judge of Probate previous to such appointment. $ 2.

The Judge has no jurisdiction, so that he can grant administration, if it does not appear, to his satisfaction, “ that there is personal estate of the deceased, amounting to at least twenty dollars; or that the debts due from him amount to that sum.” Rev. Stat. c. 105, $ 39; Chapin & ux. v. Hastings & al. 2 Pick. 361. Here, however, we have evidence furnished by the appellant, now matter of record, that there was personal estate of the deceased of much greater amount. His accounts as guardian settled from time to time during the life of the ward, and the one presented and allowed after her death, distinctly show this.

Administrators are required to be under bonds, among other things, to make out within three months an inventory of all the goods, chattels, rights and credits of the deceased, which have come to his possession or knowledge; and to administer the same according to law. Rev. St. c. 106, § 3. The duties imposed upon administrators clothe them with power to perform them. They are authorized to take into possession every species of property which the law requires them to administer; and if any is withheld, to compel by legal process the surrender thereof. All the personal property of intestates go to administrators, while real estate passes to the heirs. Whatever personal property there was in the hands of the appellant, as guardian, belonging to his ward, he was bound to deliver, on legal demand, to the administrator of her estate, that the same might be administered upon. After a full administration shall be made, the residue, if any, will pass to the heir or heirs. If the wife of the appellant be the sole heir, he has no right to withhold the goods from the administrator, on the assumption, that there are no liabilities against the estate, and so that it will eventually come entire to his wife.

It is unnecessary here to consider the question whether the appellee can take and hold the property to his own use by virtue of his marriage with the deceased. The decree of the Judge of Probate was not founded upon such supposed right, and is not therefore subject to objection. Neither is it material to determine who is the heir at law of the deceased, for upon the present controversy that determination could have no operation. The Rev. Stat. c. 93, $ 15 and 16, however, would seem to leave little or no occasion to present that question.

The property in dispute arises from the income of the real estate, of which Ebenezer Smith died seized, and the avails of the sale of the same, and interest on the whole. His widow, while sole, under a license from this Court, sold the real estate of her late husband, she being at the time the guardian of Polly, his daughter. It is insisted by the appellant that a portion of the proceeds of the sale belong to him, inasmuch as his wife was entitled to dower in the real estate sold. She was licensed to sell only the real estate of said Polly Smith, and she sold only the right, title, and interest of her ward, as appears by her deed as guardian. She did not convey by said deed her life estate, the right to which can still be asserted, unless the covenants in her deed shall operate as an estoppel. If the value of the whole real estate was actually received, under the belief that it all passed, and was not subject to the widow’s dower, the offer, which is made by the appellee to secure to the appellant one third part of the income of the proceeds of the sale, would be no more than justice requires ; if this offer is not accepted, we feel certain that no power is lodged with this Court, on this appeal, to decree any portion thereof to him or to his wife as the widow of said Smith.

If there was a posthumous child of said Smith who lived but a few hours, that child was entitled to a share of his estate, and it vested in that child at the birth; and on its death that share would belong to whoever was the heir of that child. But this is a fact, which is not admitted or proved, and if it were competent for us to give any opinion as to rights, which would exist in consequence of such a fact, if established, we should be unwilling to do so, where the whole previous proceedings of the appellant who now alleges it, were inconsistent therewith.

Decree of the Judge of Probate affirmed with costs.