10 N.H. 242 | Superior Court of New Hampshire | 1839
The defence in this case is a denial of the legal right of the petitioner for partition to interfere in any manner with the estate. The petitioner claims by virtue of a sale made by the administrator of one McFee, under a license from the judge of probate. But it is contended that the evidence of a sale by the administrator is wholly inadmissible without prior evidence of the death of McFee.
No administration, however, is ever granted by the probate court unless the fact of the decease of the individual whose estate is to be administered upon is first shown, or appears to the satisfaction of the court. The granting of letters of administration is, therefore, the result of a direct adjudication upon this point; and we know of no good reason why, until the contrary is shown, this adjudication is not entitled to full faith and credit.
The English law is different. 3 Esp. N. P. 63, Thompson vs. Donaldson; 1 Phil. Ev. 246; Blackham’s case, 1 Salk. 290; 11 State Trials 261. But we think the rule adopted by them cannot be sustained on good grounds, and may have arisen from collisions and jealousies betwixt the courts of common law and the ecclesiastical courts, which had an entirely distinct and independent jurisdiction.
The situation of our probate court is different. In all cases involving questions of fact, there is a right of appeal directly to this court, and any issue arising is subject to trial by jury. In this respect the probate court is but a subordinate branch of this court; and where their proceedings are thus subject to revision and correction here, the court would seem bound to regard them at least as prima fa-cie evidence of any facts necessarily resulting from their proceedings. We are satisfied that such has been the ruling heretofore in this court, and have no doubt of the convenience and correctness of this practice. We therefore hold that the granting of letters of administration on the estate of an individual is prima facie evidence of the death of the person whose estate is administered upon.
There seems to have been no difficulty in finding the land in this case ; and we think the description sufficiently certain to make a valid conveyance of it. The fact that the number of acres is not accurately mentioned we deem immaterial. A tract of land containing ten rods, more or less, with a house thereon, might well include the lot on which the house was situated and the land separated from it by the highway, which was improved in connection with it, where the whole lot extended only to forty or fifty square rods. 4 Mass. R. 205, Worthington & a. vs. Hylyer & a.; 5 Ditto 355, Powell vs. Clark; 6 Greenl. 127, Webber vs. Webber; 5 N. H. Rep. 113, Haven & a. vs. Richardson; Ditto 53, Tenney vs. Beard; 9 Cowen 182, Jackson vs. Jones; 7 Johns. 217, Rogers vs. Clark; 6 Cowen 291, Jackson vs. Marsh; 18 Johns. 81, McNaughton vs. Loomis. There is not such a discrepancy here as to induce us to hold that but part of the land owned in common passed by the deed. Such a ruling would have avoided the entire deed, as the tenancy in common could not be severed in that manner. The construction of the deed sustained by us will wholly obviate this result. 17 Mass. R. 282, Rising & a. vs. Stannard; 9 Ditto 34, Porter vs. Hill; 11 Ditto 125, Perkins & a. vs. Pitts; 12 Ditto 348, Bartlett vs. Harlow.
Partition decreed.
