130 Mass. 83 | Mass. | 1881
When administration has not been taken on the estate of a person deceased intestate, within twenty years after his decease, and any property, real or personal, accrues to
It is said in the report that it did not appear that the petitioner had been in this Commonwealth since the death of his brother, or had made inquiries to ascertain whether he left any estate. The evidence is not reported, and the Chief Justice, before whom the case was tried, on appeal from the judge of probate appointing the petitioner administrator, did not find that the petitioner had been guilty of negligence in failing to make proper inquiries as to the condition of his brother’s estate, or was put upon inquiry under such circumstances that knowledge of the existence of the notes and mortgage is to be imputed to him. On the contrary, as the decree of the judge of probate was affirmed, it must be inferred that the petitioner was not guilty of negligence or want of due diligence. The fact that he did not visit this Commonwealth or make inquiries, cannot, taken by itself and as matter of law, under the peculiar circumstances of the case, show that he was guilty of negligence.
Nor can it be said, as matter of law, that the petitioner had constructive notice of the existence of the notes and mortgage, because the mortgage was duly recorded in the registry of deeds in the county of Hampshire. It is provided in the Gen. Sts,
It is to be assumed that a purchaser or creditor knows that the person, from whom or through whom he seeks to obtain a title to land, owns or claims to own the same; and he also knows where the land is, and in what county the deeds are recorded. He is therefore put on inquiry, and knows where to make inquiry, and he cannot shield himself by saying that he did not examine the records; but is held to have constructive notice of all deeds and conveyances of the land duly recorded. But no such reason applies to the heir or devisee of a person deceased, if he has no actual knowledge that the person under whom he claims died possessed of real estate. Ho question of the transfer of real estate arises in such a case, and he does not come within the category of persons for whom the statute is intended. Being ignorant of the existence of such land, there is nothing to put him on inquiry. It would be unreasonable to require him to
It is also contended that letters of administration should not be granted to the petitioner, because his sister, Frances Sackett, had acquired a title to the land mortgaged by prescription, she having been in exclusive possession of it from 1851 to 1879, under a claim of title. But that question cannot be settled in the Probate Court, on a petition for letters of administration, but must be tried and determined in a court of law. The Probate Court was required only to determine whether a sufficient case had been made out to authorize the granting of administration, in order that the rights of the parties having an interest in this estate might be enforced and decided at law. Bowdoin v. Holland, 10 Cush. 17.
Decree affirmed