| Mass. | Mar 15, 1849
This is an appeal from a decree of the judge of probate for the county of Suffolk, allowing and approving the will of Joseph Lovering, deceased.
It appears, that at the time of the decease of the testator, the judge of probate was indebted to him on a promissory note secured by mortgage. Notwithstanding this, the will was offered before him and proved ; afterwards, perhaps upon a doubt whether the will was duly admitted to probate, the executors sold the note and mortgage for their full value, and the will was again offered and admitted to probate by a decree, from which one of the heirs has taken this appeal.
By the Rev. Sts. c. 83, § 15, when a judge of probate is
In the case of Cottle, Appellant, 5 Pick. 483, it was held, that being a creditor of the estate was such an interest, as would deprive the judge of probate of his jurisdiction. In the case of Coffin v. Cottle, 9 Pick. 287, the same principle was affirmed, and it was further decided, that the first grant of administration, by a judge so interested, and all proceedings under it, were not within his jurisdiction, and were void. Even where a judge had a small valid demand against the estate of a deceased person, which he had determined in his own mind not to enforce, and took jurisdiction and granted administration, it was decided, that having a valid claim against the estate, he was a creditor and interested ; .and although he had determined, upon considerations of expediency, not to enforce his claim, and had even given his agent orders to that effect, yet he might alter his mind, his order was revocable, and he still remained a creditor. Sigourney v. Sibley, 21 Pick. 101.
In the present case, the relation of the judge to the deceased was that of a debtor, and not a creditor. But the court are of opinion, that this relation creates an interest of a like kind with that of being a creditor, and, under the statute, divested the judge of his jurisdiction. Nor was his jurisdiction restored by an assignment and transfer of the note and mortgage, after the first and before the second probate of the will. The case being coram non judice, the first probate was not voidable merely, but void, incapable of being made good by confirmation, waiver, or ratification, on the part of those interested. Being void, the executors took no authority under it; their assignment of the note and mortgage was irregular, and effected no change of ownership; so that the judge still remained a debtor to the estate, at the time of passing the decree appealed from. Decree revered