Wheeler v. Wheeler

1 Conn. 51 | Conn. | 1814

Smith, J.

It appears from the record, that as long ago as the year 1800, land was sold, by an order of the court of probate, for the payment of debts ; and that the money was paid over to the creditors, their receipts taken in full, and lodged with the court of probate. It appears also, that the order under which such sale was made, was set aside by the superior court, on appeal, whereby the sale was rendered void. The question for this court to decide is, whether under the above circumstances the order now in question could be made, in order to raise money for the payment of those debts, which were apparently satisfied by the former sale ?

It has been argued, that the creditors were all paid, and their receipts taken in full, so that there were now no debts due for which lands could be sold. It was also argued, that these moneys having been paid over voluntarily to the creditors, and being no more than was justly due to them, could not be recovered back.

It does not, however, appear to me necessary to go into an investigation of these questions; because if it were admitted that there were now no debts due to the former creditors, and that the moneys formerly paid them could not be recovered back, it would follow that the administrator would become the creditor, and the land ought to be sold to pay him. Surely it cannot be contended, that an estate is to be exempt from the payment of just debts, by means of any mistake which may intervene in the sale of real estate.

Another ground of objection to the decree of the court of probate was, that an allowance to the widow of 120l. was included with the debts to make out the sum of 1930l. for the payment of which the lands were ordered to be sold. Whether this objection has any foundation in point of fact does not very clearly appear from the record. The debts allowed by commissioners amount to 1966l., and the personal estate appears to have been administered upon and applied before the order of sale was made. Now, whether the sum found and reported by the commissioners, and that which was allowed to the widow, were first united, and the personal estate applied to them indiscriminately, leaving the sum of 1930l.; or whether the personal estate was applied to pay the sum allowed to the widow, distinctly, in the first place, and the remainder applied to pay the debts, is uncertain, and cannot be determined by the record. Nor do I feel very solicitous to search after this fact, because I find it to be expressly stated and admitted, that the court of probate did adjudge, that the personal estate had been duly administered upon, and applied to the payment of debts, and that the sum of 1930l. remained due after such application.— This was a former adjudication of the court of probate from which no appeal was taken, and must, therefore, conclude the parties. It is, therefore, too late to dispute the fact that such an amount of debts was due.

The other Judges were of the same opinion.

Judgment affirmed.