Hall v. Woodman

49 N.H. 295

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1870
• Status: Published

Opinion

Sargent, J.

Farmer bought this whole lot in 1823. In 1835 he sold it to Josiah I. Hall and Joseph B. Hall, Jr. In 1837, Joseph B. Hall, Jr., conveyed to his father, Joseph B. Hall, one undivided fourth part of the whole lot, and said Joseph B. Hall, Jr., died in 1840, being over twenty-one years of age and unmarried. This left his father, who was then living, his sole heir, who took his estate and held it for many years, and was also administrator on his son’s estate.

This vested in Joseph B. Hall, at least for the time being, one undivided half of the estate ; the fourth part which he held by deed from his son, and the other fourth which he held as his son’s heir. In June, 1840, after the death of J. B. Hall, Jr., Josiah I. and Joseph B., divided the land between them, each quit-claiming to the other one-half, by which arrangement, Joseph B. took the easterly half of the lot, holding one half of it by virtue of his brother’s quitclaim deed and the other half in the manner above stated.

In 1843, Joseph B. Hall died, and his estate was administered in the insolvent course, being decreed insolvent in 1844, and in 1845, license to sell real estate pay debts, was granted to the administrator, and in March, 1846, he sold various lots of land, belonging to J. B. Hall’s estate, but though this Farmer lot, was mentioned as belonging to Joseph B. Hall’s estate, and appraised at $600, yet the administrator never sold that land or any part thereof under his license, but settled his administration account, first in January, 1845, before his petition for license to sell real estate, and his second - and last account in October, 1846, (a commissioner having been previously appointed and his report having been made and accepted), and on such settlement, a decree of distribution was made of the amount in the administrator’s hands, among the creditors of the estate, this divdend amounting to over fifty per cent, on the amount of the claims.

This was, no doubt, intended and understood to be the final settlement of this estate. This appears evident from several circumstances disclosed in the case. First, This license to sell real estate, was void by statute, unless the sale was made under it, in two years from the tune it was granted. No attempt was made to sell this laud under that license, or to obtain a new one, by the administrator. Second. The administrator lived in the neighborhood for fifteen years after this settlement, and never, so far as appears, made any other settlement, or undertook to do anything farther towards administering upon this estate. Third. It appears that the same man who administered upon J. B. Hall’s estate, was also appointed administrator, de bonis non, of the estate of Joseph B. Hall, Jr., after the death of his father, and on the same day that he sold the real estate of J. B. Hall, March, 1846, he also sold, this undivided half of the Farmer land, as belonging to this estate of J. B. Hall, Jr., one-half of the lot having been inventoried as belonging to the estate.

It seems also, that the creditors of J. B. Hall’s estate understood that a final settlement had been made in October, 1846, since none of them had ever moved against the administrator, during the fifteen years that he lived among them, after that settlement, as they would have done if they had understood, that any further settlement or payment of their claims was to be made.

But why this administrator should be charged with a balance of §791.71 on settlement of the estate of J. B. Hall, Jr., in August, 1846, and should only charge himself with §5.89 as the balance in his hands accruing from this son’s estate, on settlement of the father’s estate in October, 1846, we do not understand, neither can we see how this administrator, de bonis non, could have obtained license to sell the real estate of J. B. Hall, Jr., since if there was a balance oi §791.71 left in his hands on settlement of the estate, that would probably show, that no such sale of real estate was necessary to pay debts with, but more than that, it is impossible to understand, how there could have been any debts outstanding against that estate. J. B. Hall, Jr., died in February, 1840, and his father was appointed his administrator, probably soon after, and the father J. B. Hall died in September, 1843, having probably acted as administrator for three years or more before his death, for the case finds, that he held this trust till he died.

If this were so, then there could be no debts, due after his, (the administrator’s) decease, which could authorize the court of probate to grant license to sell real estate, except in one or two contingences. If the administration was suspended, which it probably was not, or if there were debts, not due and depending upon a contingency, to pay which, the judge of probate had ordered the administrator to hold funds of the estate in his hands, under the statute; or when suits had been brought upon the claims within the three years, and were not adjusted. These are all the exceptional cases to the rule-that now occur to us, which rule is, that all debts not paid, would be barred by the statute, in three years from the appointment of the administrator.

We have held in Amoskeag Company v. Barnes, 48 N. H. 25; that all claims not paid or sued,within the three years from the granting of administration, are barred by the provisions of the fiifth section of chapter 179 General Statutes, (being the same as the provisions of the Revised Statutes, upon that subject) and that the administrator has no right or power to waive that bar, and that he cannot avoid it, or prevent its effect, by any new promise in writing or otherwise so as to bind the estate.

Therefore, no license of the probate court, should ever be granted-to sell real estate, to pay or discharge debts or claims which have thus been suffered to lie more than three years after administration granted, without beiug paid, except in an exceptional case like those stated above. In Massachusetts it was held, that a license to sell real estate, to pay debts with, which were thus barred, was void, and that a sale under it was void, and passed no title to the purchaser. Heath v. Wells, 5 Pick. 139 and cases cited; Thompson v. Brown, 16 Mass. 178.

But in New York, it is held otherwisé, and though it is thei’e held that a license to sell should not be granted in such case, yet that when granted the license will be valid, and the sale under it good, if there is no appeal from the decree, grantingthe license. Mooers v. White, 6 Johnson ch. 387; and cases; and Jackson v. Robinson, 4 Wend. 436, and cases cited. We think this is the reasonable view to take of the matter.

The sale was made, by virtue of a decree of a court, having jurisdiction over the subject matter. Whether there were any debts or legacies, for the payment of which, the land would be liable, was a question which was directly in issue in the probate court, aiid a question which that court had competent authority to decide, and - it was made its duty to decide it, before granting license. From that decision when made, any party interested might appeal, and have the question retried in this court. But when the court of probate, had decided that question, and no appeal was taken, and the proper decree was entered up, the matter had passed “ in rem judicatrem,” and it would be quite contrary to the elementary principles of law and equity, to disturb the title of a bona dde purchaser under such a decree and sale, who had reason to rely upon its validity. Such decisions could not fail to be attended with the most mischievous consequences.

Can the plaintiff hold any part of this land here in controversy? The one-fourth which belonged to J. B. Hall, Jr., at the time of his death, has since been sold in the settlement of his estate, and that part so far as we see, must now be held to have passed by that sale. But the other three-fourths of the east half of the Farmer lot, was owned by J. B. Hall, at the time of his decease, and it is now claimed under him, six-eighths of it by this plaintiff, who represents six of the eight children and heirs of said Joseph B. Hall. The defendant claims it, under the deed given of one half the Farmer lot, when sold at auction as belonging to the estate of J. B. Hall, Jr., but he can hold only one fourth in that way, and the balance he cannot hold by prescription, as the case shows, and so the question raised, is whether this plaintiff, representing the heirs, can now hold the land as against the creditors of the estate of J. B. Hal), and whether it is now the duty of the judge of probate, to grant administration de bonis non, on that estate and thus take this land for the benefit of the creditors of that estate ?

We think, that there must be some time within which an administrator must appropriate the lands to pay the debts due from the estate. The heirs at law, have a right to all the land and other property that is not needed, to pay the debts and expenses of the estate. If the estate is solvent, the land goes to the heii’s directly, liable to be taken from them if needed, to pay debts, by the administrator. Upon a decree of insolvency, the land passes into the hands of the administrator, with the other property to pay the debts ; but if it is not needed for that purpose, when the estate is finally settled, it does not belong to the administrator, but goes to the heirs, although there had been no decree of insolvency. What are the duties of the administrator, and what are the rights of the heirs in such cases? When will the rights of the heirs revive in such real estate, which has been in the hands of the administrator to pay debts with, if it has not been appropriated by him, for that purpose? Where is the line between these adverse claims? In other words, what rule shall the court of probate adopt, in granting licenses to sell real estate, to pay the debts of the deceased «owner ?

A general rule, which applies in most such cases, is that the administrator must sell the land and appropriate it in a reasonable time after his appointment, else his right to it ceases, and the heirs may step in and resume their rights, or take the rights they would have had, but for the special and limited estate of the administrator. If the administrator, do not thus dispose of the land in a reasonable time, and thus looses his right to dispose of it, it would be negligence on his part, and he would be liable on his bond to the creditors, for whatever they had lost by such neglect on his part, or he may be charged on the final settlement of the estate, for the value of such property, as he had the power to sell, and as it was his duty to sell, but did not. This could only happen,when the estate was insolvent, or,when it was necessary to sell land in order to pay the debts. By law, the administrator’s special estate in the land is limited by his necessity to use it to pay debts with, and also limited by the reasonable rule, that he must thus use it in a reasonable time, after his appointment. What that reasonable time is, has never been settled in this state, that we are aware of. But the subject has been discussed considerably in other jurisdictions.

In Massachusetts, the court refused to grant a license to the the administrator to sell real estate of his intestate for the payment of debts, because (among other reasons) more than four years had elapsed since the granting of administration. Scott v. Hancock, 13 Mass. 162. Jackson, J., — in the opinion, after alluding to the fact that it had been settled that an administrator is not bound to plead the general statute of limitations, and that, therefore, without farther legislation, he might by failing or refusing to plead it, suffer a judgment to be recovered against the estate at any time, and thus keep the land bound for an indefinite period — adds : ‘ ‘It is apparently, from considerations of this kind, that the legislature passed the two statutes of 1788, ch. 66, and of 1791, ch. 28. By these statutes, it is enacted that no executor or administrator shall be held to answer to any suit, unless commenced within four years after undertaking that trust. * * * The general effect of that law was to discharge the lien on the estate in the hands of the heir, after the expiration of four years, and this was obviously one of the objects of the legislature in making it.”

In Brown v. Anderson, 13 Mass. 201, and in Dawes v. Shed, 15 Mass. 8, it was expressly held that the executor or administrator was obliged to make that defence for the protection of heirs, devisees, legatees and purchasers of the estate, which he represents, adding that these statutes were made for the benefit of all interested in the estate, as well as • for the convenience and safety of executors and administrators. And it was held that a promise by an administrator to pay a debt due from the estate, will not take the demand out of this statute, that however they might bind themselves, they could not bind the estate in that way, and thus defeat the limitation the statute had imposed.

In ex parte, Allen, 15 Mass. 58, it is held that where the executor pays debts of the testator beyond the amount of the personal property within the four years limited by statute, he cannot after the expiration of the four years, obtain a license to sell the real estate to reimburse himself, unless the estate remains at the time of his application, as it was at the death of the testator, without partition among the heirs or devisees and without any conveyance from them or the executor; nor unless he makes the application within a reasonable time after his payment of the debts. And that in such case it is entirely within the discretion of the court to grant such license ; that it is not a matter of right, even under the many favorable circumstances there enumerated; and in that case the petition for license was denied.

In Thompson v. Brown, 16 Mass. 172, 180, it is said, Parker, C. J., that the lands of a deceased debtor are, indeed, charged by the statute, with his debts, but the lien cannot continue beyond the time fixed by the same statute within which the creditor has a right to pursue his remedy. If he does not thus pursue his remedy, he loses all lien upon upon the real estate. And in Emerson v. Thompson, 16 Mass. 429, it is said that the bar arising from the statute, of 1788, chap. 66, could not have been waived by the executor, because it is provided not for his benefit alone, but for that of heirs and devisees also, in order to discharge their estates within a reasonable time, from the lien for the debts of the deceased. But the statute of that state, made the four years, commenee from the time of accepting the trust and giving notice of his appointment (while ours is three years from the original grant of administration,) and in that case the executor had not given his notice as required. The same doctrine is held in ex parte, Richmond, Administrator, 2 Pick. 567.

A similar rule has been established in New York, that the executor or administrator must avail himself of the real estate by sale, in reasonable time, and that unless he do so, his lien upon the real estate is lost. And it is there held, that one year after the executor has entered upon the duties of his office, is a reasonable time, in which to apply for such license, in ordinary cases. The same principle is adopted there as in Massachusetts, but the statute of New York, makes one year the time within which suits must be brought instead of four years as in Massachusetts. In Mooers v. White, 6 Johns. ch. 387, Kent, Chancellor, reviews the authorities and conies to that conclusion and holds that ‘ ‘the executor ought not in any case to be permitted to obtain an order for the sale of the real estate, as to debts which would be barred at that time by a plea of the statute of limitations” (meaning the special statute applying to executors,) and for the reason that the heir or other owner of the real estate is entitled to the benefit of that plea, and such an order would be the means of depriving them of it. Jackson v. Robinson, 4 Vi end. 436, is to the same effect, though they there hold what seems to us to be a reasonable view of the matter, that the surrogate having jurisdiction of the case, an error on his part can only be taken advantage of, on appeals. But the Rev. Stats. of that state have changed the time and require such application for license to be made within three years after the granting of administration. Id. note c,

In Maine the same rule has been adopted as in Massachusetts, their statute of limitations for executors being the same as in that state, four years. In Newell v. Newell, 8 Greenl. 220, Parris, J., in the opinion says : “The law of Maine, chap. 52, sec. 1, has made all the real estate of which any person may die seised, liable for the payment of his debts, and the charges of administration, but to the duration of that liability, there certainly should be some limitation. It is unnecessary for the accomplishment of the object of the law, and it would be extremely inconvenient and embarrassing to heirs, that this lien so extensive and paramount in its effect, should remain unlimited, * * * as this (four years) is the period beyond which the administrator is no longer liable for the payment of debts, it is to be expected that his administration will speedily thereafter be brought to a close, unless some extraordinary circumstances, render it necessary to keep it open a further time.” The same doctrine is held in Newell v. Bragdon, 14 Maine 320, and Smith v. Dutton, 16 Maine 312.

In Illinois, it has been held by analogy to the rule established ¡in Massachustts and Maine that no license should be granted to the administrator by the probate court to sell the real estate of the in testate to satisfy debts still due, after the expiration of one year from the final settlement of the accounts of the intestate, in the probate court, unless the particular circumstances of some special case,would make it the duty of a court of equity, to depart from the general rule. Dorman v. Lane, 1 Gilman 143.

But in that case, it did not appear that a final settlement had ever been made by the administrator, but it appeared that he had neglected for the space of fifteen years to execute a trust which the law required him to execute in a reasonable time, and “ this delay, this neglect of duty, this gross laches on his part, remaining wholly unaccounted for, cuts him off from any right to the benefit of this application.”

In the case before us, we have seen that the administrator obtained license to sell the real estate. This particular piece of land was inventoried as belonging to the estate and appraised at $600, no inconsiderable sum. The administrator could not have been ignorant concerning it, nor- have passed it by, as a thing of no value, but having sold all the rest of the real estate, so far as appears, he settled his second administration account, a decree of distribution is made and the funds in his hands are divided accordingly. The two years within which the land could be sold under the license, expires. No new license is obtained or applied for, and during the fifteen years, that followed this settlement, the administrator lives in the immediate neighborhood, until his death in 1861, when two years more pass and nothing is'done by the representative of this administrator, or by the creditors, when these heirs (six of the eight), convey their interest in this land to this plaintiff, who brings his suit just in season to prevent the tenant from holding by adverse possession.-

It is said in Bergin v. McFarland, 26 N. H. 537 ; that the provisions of the Revised Statutes, gave to the administrators of insolvent estates, a special and limited estate, to continue until it should be terminated by a valid sale under a license from the court of probate, or until the close of the settlement of the estate if a sale should not be necessary. But this statement should be qualified as it was no, doubt intended and understood to be, by the provision that the administrator should settle the estate, as it is made his duty to do, in a reasonable time.

In this case, we think the settlement of 1846, should be regarded as the final settlement of the estate. It is evident, that it was so understood and intended, both at the time and afterwards. In that view, the administrator’s interest in it ceased, after he settled the estate and left this land unsold; and it became the^ property of the heirs with the right of immediate entry, and the creditors have their remedy, not upon the land, but against the administrator for neglect of duty. But suppose we look at it, in the other light. If this settlement of 1846, was not a final settlement, and it was understood that a further and final settlement remained to be made, then the doctrine of Dorman v. Lane, supra, applies, and the administrator stands chargeable, with having neglected for the space of fifteen years to execute a trust which the law required him to execute within a reasonable time, and as in that case, so we should hold that this delay, this neglect of duty, this gross laches on his part, remaining wholly unexplained cuts him off from any right to apply the real estate of his intestate in that way. The creditors remedy,would be on his bond, and not by following the land.

But the creditors of Joseph B. Hall have not asked, and do not ask for the appointment of an administrator. The claim of this plaintiff under the heirs, is not opposed by any creditors of said estate. This defendant would stand no better, as against an administrator of Joseph B. Hall’s estate who should do his duty, and hold the land for the benefit of creditors,than he now does. Such a movement would not help him any.

The court of probate did right, in not granting the petition for an administrator de bonis non. It should be dismissed at once, and the probate court, should adopt the rule, that after the expiration of three years from the granting of administration, a license to sell real estate should not be granted in ordinary cases. If administration has been suspended, then the time for granting license may be extended to correspond. In case of debts not due, or depending on a condition, the judge of probate will make an order for the administrator to hold funds to pay them, but ordinarily, that would not interfere with the settling of the estate, or the sale of the lands, if it did so interfere properly, that would be a good reason for extending the time, according to the circumstances of each case.

But it often happens that claims that are sued within the three years, allowed by statute, are contested in good faith, and it is uncertain whether real estate will need to be sold, to pay debts and expenses, until the suit thus litigated, is determined and the costs and e xp en s e s, a s cer t ai n e cl, which may not bo done till long after the three years have expired, theu if the claim is established against the estate and judgment recovered for debt and costs, it may become necessary to sell real estate to pay it with, and in such case the administrator should be required to apply for his license to sell, in reasonable time after it is known that a sale is necessary.

And so in an insolvent estate, or one administered in that course, should there be au action of review or an appeal from the decision of the commissioner, as there often is, and a litigation of the claim, the necessity of a sale of a part or all the real estate, may , depend upon whether this claim is allowed in whole or in part or disallowed altogether. In such case, if the administrator acts in good faith and shows a sufficient reason for the delay, and also, applies for license, to sell in reasonable time, after it becomes apparent that such sale is necessary, then the time may be extended. But unless there is some good reason like that, we see no reason why the same rule should not apply to estates settled in the insolvent course, as well as to others. In such cases, the debts are ordinarily allowed in six months, and they must be within two years from the issuing of commission and no suits are then brought, but everything goes before the commissioner; and unless there should be an appeal from the commissioner, which was not adjusted within the three years, or a case of review, which may be prosecuted notwithstanding the insolvency, there would seem to be no reason for a longer delay.

We do not mean to decide, that every application'for license to sell real estate, must necessarily be granted if applied for within the three years. In ordinary cases,, it is the duty of the administrator to proceed much more rapidly than that, and have his land sold if needed and his estate all settled up, long before the expiration of the three years.

In this case, there is no occasion for the appointment of any administrator de bonis non. There would be nothing for him to do if he were appointed, as the title to this laud has long since vested in the heirs.

There must, therefore, be judgment for the plaintiff for six-eighths of three-fourths of the easterly half of the Farmer ten acre lot, unless there is some question of fact, that one party or the other may desire to try.