Luchterhand v. Sears

108 Mass. 552

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1871
• Status: Published

Opinion

Colt, J.

The petitioner seeks to compel the specific performance by an administrator of his intestate’s agreement to convey real estate. The petition can be maintained only by virtue of the provisions of our statutes, which give to an administrator’s conveyance in such cases, when ordered by the court, the same force and effect as if made by the person who entered into the agreement to convey. Jurisdiction is given by statute to the probate court, concurrently with this court, upon the petition of any person interested in the conveyance. Gen. Sts. c. 117, §§ 5, 6.

The petitioner alleges that, upon a former petition by him in the probate court, the relief here sought was denied. It thus appears upon the face of his petition that he has once had day in a court of competent jurisdiction, the action of which, first invoked by the petitioner himself, excludes all concurrent jurisdiction, and is conclusive upon all other tribunals. It is subject to revision by an appeal to this court, but it cannot be revised upon this petition. Stearns v. Stearns, 16 Mass. 167. For this reason alone the demurrer to this petition must be sustained, without reference to the other specified grounds.

Demurrer sustained; petition dismissed, with costs.