6 N.H. 370 | Superior Court of New Hampshire | 1833
By the statute of July 2, 1822, empowering the several judges of probate to license, executors, administrators and guardians to sell real estate in certain cases, it is enacted that in default of personal estate to answer the just demands against the estate of any per
The second section of the same act provides, that “ when any estate in land other than a present fee in the same is to be sold by virtue of this act, such estate shall be specified in the application for license in the order of notice, and the license.”
It is agreed, in the present case, that a license was granted to sell the real estate of William H. Hoyt, the intestate, on the application of the administratrix of his estate, without any order of notice, and without any notice to the heirs ; but it is contended that the heirs, being minors at the time, and no guardian having been appointed for them, an order of notice and notice to them was not necessary, because the administratrix who made the application was their mother, and guardian by nature — that she had knowledge of course, and that a notice to the minors themselves would have been useless.
We are of opinion that this argument cannot avail to justify the proceedings in this case.
The statute, in its terms, evidently contemplated that, whoever might be executor or administrator, and whether guardians had been appointed, or not, there should be an order of notice, and a day appointed for a hearing.
Nor is it any answer to this, to say, that the provision of the statute is so drawn, that an order of personal notice to heirs of tender age, who would neither know the object of it, nor be able to communicate the fact to their friends, would be a compliance with the requisitions of the statute, and yet be of no avail.
It is perhaps within the general discretion of the judge of probate what notice it is proper to order, under the circumstances of each case, and if so, it is to be presumed that the discretionary power will be exercised in a suitable and proper manner, and the order of notice be such as is best calculated to effect the objects of the statute. It would undoubtedly be an indiscreet exercise of his powers, to order personal notice to infants too young to be able to comprehend its purport and object, and whether such notice could be held legal, as within the discretion of the judge, it is not necessary now to decide.
There was here no notice of any kind. For aught which appears, no one except the mother, who was the applicant, had any knowledge of it.
But the mother, os guardian by nature, or for nurture, has no control over the estate of the child, nor is she under any responsibility for the due care of it. 6 Conn. Rep. 500, Kline v. Beebe; 2 Kent’s Com. 181; 1 Johns. Ch. Rep. 3, Genet v. Tallmadge; 3 Pick. 213, Miles v. Boyden; 1 P. Wms. 285, Dagley v. Tolferry; Co. Litt. 88, C. & notes 12 & 13, Day’s Ed.; Reeve’s Dom. Rel. 314.
Knowledge by the mother, therefore, ensured no legal protection to the rights of the minors, for she had no Ie-
Even if a father, who more generally superinlcnds the pecuniary interest of his children, was applying, as executor or administrator of an estate in which they were interested, for license to sell that estate for the payment of the debts, there must be an order of notice, and a day of hearing, before license could be granted. And so if the executor or administrator applying, held at the time a letter of guardianship over the heirs.
It is evident that the law did not intend to leave the rights of those who might be interested adversely to the application, to the sole care of the individual making that application, even if he were a guardian duly appointed according to law.
An order of notice, and a day of hearing, are expressly made necessary, by the sixth section of the same statute, where a guardian applies for license to sell the real estate of his ward, notwithstanding it is the special duty of such guardian to take care oí'the interest of his ward, and he is moreover under bonds for the faithful discharge of that duty. The ward himself, or others in his behalf, may still show in such case that a license ought not to be granted, and we think this furnishes a conclusive argument to prove that there is no sufficient .reason to dispense with an order of notice, and a day of hearing, upon an application for license to sell for the payment of debts, although the executor or administrator making the application, may be the mother, father, or even the guardian of the heirs interested in the estate.
It has been further urged, that the estate of William H. Hoyt was in fact insolvent ; that the heirs, therefore, could have no interest in the application for license to sell, and that the necessity for notice was thereby superseded.
But the statute has made no: exception of such a character, and moreover it could not be judicially ascertained
To hold that the eventual insolvency of the estate might furnish a dispensation from the requisitions of the act, would make the validity of the proceedings depend upon the amount realized by the sale : and if, upon a settlement of the administration accounts, it was found that the sum so received was sufficient, with the personal estate to pay all the debts, and that no notice had been given, then the sale would become void and the purchaser’s title fail ; the proceedings must be commenced deno-t'd, and unless notice should be given upon the subsequent applications, they must be repeated until the proceeds of the sale should he small enough to make the sale itself legal.
It is only necessary to state this result to show that this argument cannot avail the plaintiff.
The role prescribed by the statute is plain and simple ; it contains no exceptions, nor do we discover any sufficient reasons why any should be made in this case.
Judgment for the defendants.