Bucknam v. Phelps

6 Mass. 448

• Court: Massachusetts Supreme Judicial Court
• Decided: May 15, 1810
• Status: Published

Opinion

Curia.

We are of opinion that the judge erred in refusing to hear the evidence offered by the administratrix in this case. At the» time of the first decree, the evidence to prove the insufficiency of the estate to pay all the debts, might not establish or render that fact probable. But since that time, evidence of new facts tending to prove that insufficiency may be in the possession of the appellant. New debts may have been since exhibited to her; or credits or effects supposed to belong to the estate may have been found to be of little or no value. — The judge, therefore, * ought to have received any new evidence to prove the [ * 449 ] insolvency, and to have decided according to the weight of it, and not to have considered his former decree as conclusive

Mellen and Hopkins for the appellant. Whitman and Greenleaf for the appellee.

This decree must be reversed, and the cause remitted to the judge, with directions to receive any further evidence the appellant may produce, and thereupon to decree according to the law and justice of the case.