Moody v. Moody

11 Me. 247 | Me. | 1834

Weston J.

delivered the opinion of the Court,

If the administrator’s third account has been duly allowed by the Court below, and is not open for examination here, the decree of that Court of the 4th of March, 1833, licensing the sale of so.much of the real estate of the intestate, as will produce the sum of fifteen hundred dollars, and which has been brought before this Court by appeal, is sustained by the prior proceedings, and must be affirmed. It is insisted that the decree, allowing that account, was vacated by the appeal, interposed by Edmund Moody. No evidence whatever of such an appeal, or that any bond was thereupon given, or reasons of appeal filed in conformity with the statute, appears in the records or proceedings of the Court of Probate. In point of form then, the decree is a legal, valid and subsisting one. If it had the force and effect of a judgment at common law, it could not be impeached while unrevers-ed, except upon the ground of fraud. As however the proceedings of a Court of Probate are not according to the course of the common law, and therefore not examinable upon a writ of error, it is doubtless competent for a party, attempted to be charged by a decree of that Court, fp repel its operation upon him by showing in the proceedings a substantial departure from the requirements of law.

The validity of a decree, from which an appeal has been duly claimed, is suspended; and it has no longer any validity or binding force, until affirmed in the Supreme Court. In this condition, it is urged, is the decree allowing the administrator’s third account. What evidence will the appellate Court require, that an appeal has been legally made ? This should appear from the records of the Probate Court. If the proceedings there are duly and properly conducted, the superintendance of which belongs to this Court, the appeal claimed, the bond to prosecute it, and the reasons of appeal should be found on the records and files of that Court. And this Court would by order or mandamus cause that duty to be performed, if neglected. Whether without resorting to such a course, the Court would sustain an appeal of which no evidence there appeared, or hold the decree below thereby suspended or vacated, would require consideration. And the interposition of this Court in the manner suggested, should be at the instance, motion or petition of the party claiming the appeal. All other persons must be understood to have acquiesced in the decree. The appellant from the decree, allowing the third account, is not aggrieved, nor does he complain of any neglect or deficiency in the Court below. And if he did, upon the facts proved, this Court would not feel itself called upon at his instance, by mandamus or otherwise, to correct a course of proceeding, which he was active in procuring. Parol is not the best evidence of the appeal, and of the other requisites, essential to its validity, of which the nature of the subject is susceptible. But it may be said that it is admissible, if better evidence is omitted to be entered by neglect, or unduly suppressed. We incline however to the opinion, that parol evidence would be received by the Court, in a case proper for its interposition, only for the purpose of directing the Court below to complete and certify the proceedings there, whereby an appeal was claimed.

But admitting that the decree of January, 1833, allowing the third account, was vacated by the appeal, the question more immediately before us is, whether the license of March, 1833, ought to have been granted. The third account of the administrator had been filed, its correctness was then recognized by the Judge, and made the basis of his decree. It is now before us as a paper, the validity of which is no longer questionable, or if questionable, subject to our examination and revision.

The former sale was void as against the heirs, by reason of the neglect of the administrator to give the bond required by law. One of the heirs has already avoided the effect of that sale, by judgment of law, and another, the appellant, is now controverting the right of the administrator to sell the land upon a new license; a question in which she could have no interest, unless upon the ground that the first sale was invalid. She should in justice be held to treat that sale either as operative or void. If operative, the land is gone from her, and she has no remaining interest in the subject matter. If void, there is certainly, so far as she is concerned, no propriety in holding the administrator to account for the proceeds. By appealing from the decree licensing the sale, she does in effect claim the land as heir. And by resisting the correction of the administrator’s accounts, she claims to hold it against the creditors at his expense. We see nothing in the case which precludes him, under the sanction of the Probate Court, from correcting an error in his accounts, founded in misapprehension and mistake. Nor do we perceive any reason why that sanction should ho withheld. The heirs at law lose nothing thereby, which does in justice or equity belong to them. The expenses of the former sale rightfully fall upon the administrator ; for it was owing to his negligence that it was not effectual. Upon the whole we are of opinion, that the administrator’s third account is well supported by the evidence, and that the license thereupon for the sale of the real estate is warranted by law. The estate being insolvent, the claim of the creditors, and of the administrator in trust for them, is preferred to that of tire heirs.