By the Court.
The jurisdiction of the court of probate has been admitted in the argument. It has also been admitted, that the decrees of a court of probate having com[313] petent jurisdiction, are conclusive, while they remain un-reversed, on every question which they profess to decide. But, it has been contended, in support of the judgment of the court below, that, notwithstanding the universality of the terms of the decree, and order of sale, it must be limited, by construction, to that portion of the estate, which appears, by the judge’s records, to have been inventoried.— There is, undoubtedly, one instance, in which a general order of sale must receive a constructive limitation. That is, in the case of a creditor, who may have neglected to have exhibited his claim to commissioners. In the last paragraph of the act relating to an equal distribution of insolvent es-'' tales, it is enacted : “ And whatsoever creditor shall not “ make out his or her claim with such commissioners, he- “ fore the full expiration of the time set and limited for that “ purpose, as aforesaid, such creditor shall for ever after be debarred of his or her debt ; unless he or she can shew u or find some other or further estate of the deceased, not “ before discovered, and put into the inventory.” (f) The negligent creditor, to entitle himself to a recovery under this paragraph of the statute, must not only shew, that there is certain property belonging to the estate of the deceased, which has not been inventoried, but he must also adduce satisfactory proof, that it was not before discovered : or, in other words, that the existence of it was unknown to the judge, when he made the general order of sale. Its not being inventoried might, indeed, be firimd facie evidence, that it was not before discovered. But it is not conclusive evidence. And if the administrator could shew, that the pretended new discovered property was not only known to the judge before he ordered sale, but that it had been actually inventoried, though the inventory had not been put on record ; the case would be taken out of this provision of the statute, and the creditor’s right of recovery would be defeated. But whatever may be the construction of this paragraph of the statute, it relates to creditors only, and extends hot to the heirs at law. It is, perhaps, needless to remark, [314] that this provision of the statute furnishes a presumption, that, in the opinion of the legislature, this new discovered estate, if there had heen no negligent creditor to seize upon jt, would be subject to the general order of sale.
But: what necessity exists for limiting the order of sale, in the case of an heir, to the property inventoried, and apparent on the records of the court ? Without such limitation will the heir be defrauded ? Certainly not ; for he is entitled to nothing, until the creditors are satisfied. If the estate inventoried, and that which is newly discovered, but not inventoried, fall short of satisfying the demands of creditors, no injustice is done to the heir. If, on the other hand, a sale of the whole should be more than sufficient for that purpose, the heir will be entitled to receive the balance. But will no injustice be done to creditors, if the limitation contended for should be adopted ? A large portion of an insolvent estate may escape the diligent search of the administrator, until after the order of sale ; (for the estates of insolvents are generally more involved than others) and this must go to the heir, to the injury of creditors, since the whole would be insufficient to satisfy their demands. Or will it be said,that the administrator may add the new discovered estate to the first inventory, and cover it by a new order of sale 1 As well might you permit him to sell it under the first order, the terms of which are sufficiently general to cover the. whole.
But this train of reasoning leads to an inference, which it is by no means necessary, in this case, to adopt. Whether or not, a general order of sale includes property unknown to the judge at the time of making the order, is a question not to be involved in the determination of the cause before the Court. For, it is apparent on the record, that the existence of the demanded premises, as a part of the estate of Daniel Sheldon, was known to the judge, long before the decree of insolvency, and order of sale. This fact was communicated to the court of probate, by the administrator, when he ex[315] hibited the first inventory ; and the information was recognized by the judge, in his order for accepting and recording the inventory. The demanded premises, therefore, constituting a part of the estate of Daniel Sheldon, were within the knowledge of the judge of probate, and must be supposed to have been in his contemplation, when he made the order of sale. If it were requisite, as undoubtedly it was, for the judge to have ascertained the value of this part of the estate, before he pronounced the decree of insolvency ; then we must presume this to have been done, whether it appear on his records or not ; for, otherwise, we shall impeach the decree. But this fact is not left to presumption only. For it is expressly averred in the plea iri bar, that, on the 5th of January, 1T7"4, long before the decree of insolvency, and order of sale, the administrator caused a true and perfect inventory of all the estate of Daniel Sheldon, which had not. been before inventoried, to be made, and that the demanded premises were included. To give force and validity to the decree, we must presume, that the judge had this before him, and took into his calculation the value of this part of the estate, when he decreed it to be insolvent. It is said, however, that this second inventory was not accepted, by the judge, and ordered to be recorded. It may be answered, that the averment is inadmissible ; because, if such acceptance were requisite, the averment impeaches a decree of a court of probate having competent jurisdiction ; and such decree cannot be impeached in a collateral action. On the contrary, if such acceptance and order of record, were necessary to give validity to the decree, then they must be presumed. But, it may well be doubted whether such acceptance be necessary for the purpose, which we are now considering. The inventory of an estate represented insolvent is required, by the judge, as one article of evidence, to enable him to determine correctly, whether the estate be solvent, or insolvent. Now, does not an inventory, regularly taken by two or three indifferent freeholders under oath, furnish the same degree of evidence to the judge of probate, before, as after, acceptance ? Is it not Inconceivable, [316] that an official act of his own, though it may be indispensibly necessary to give the inventory the force of evidence before other courts, should increase the impression intended to be made on his mind, who has the power of acceptance, and rejection ?
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court.
The jurisdiction of the court of probate has been admitted in the argument. It has also been admitted, that the decrees of a court of probate having com[313] petent jurisdiction, are conclusive, while they remain un-reversed, on every question which they profess to decide. But, it has been contended, in support of the judgment of the court below, that, notwithstanding the universality of the terms of the decree, and order of sale, it must be limited, by construction, to that portion of the estate, which appears, by the judge’s records, to have been inventoried.— There is, undoubtedly, one instance, in which a general order of sale must receive a constructive limitation. That is, in the case of a creditor, who may have neglected to have exhibited his claim to commissioners. In the last paragraph of the act relating to an equal distribution of insolvent es-'' tales, it is enacted : “ And whatsoever creditor shall not “ make out his or her claim with such commissioners, he- “ fore the full expiration of the time set and limited for that “ purpose, as aforesaid, such creditor shall for ever after be debarred of his or her debt ; unless he or she can shew u or find some other or further estate of the deceased, not “ before discovered, and put into the inventory.” (f) The negligent creditor, to entitle himself to a recovery under this paragraph of the statute, must not only shew, that there is certain property belonging to the estate of the deceased, which has not been inventoried, but he must also adduce satisfactory proof, that it was not before discovered : or, in other words, that the existence of it was unknown to the judge, when he made the general order of sale. Its not being inventoried might, indeed, be firimd facie evidence, that it was not before discovered. But it is not conclusive evidence. And if the administrator could shew, that the pretended new discovered property was not only known to the judge before he ordered sale, but that it had been actually inventoried, though the inventory had not been put on record ; the case would be taken out of this provision of the statute, and the creditor’s right of recovery would be defeated. But whatever may be the construction of this paragraph of the statute, it relates to creditors only, and extends hot to the heirs at law. It is, perhaps, needless to remark, [314] that this provision of the statute furnishes a presumption, that, in the opinion of the legislature, this new discovered estate, if there had heen no negligent creditor to seize upon jt, would be subject to the general order of sale.
But: what necessity exists for limiting the order of sale, in the case of an heir, to the property inventoried, and apparent on the records of the court ? Without such limitation will the heir be defrauded ? Certainly not ; for he is entitled to nothing, until the creditors are satisfied. If the estate inventoried, and that which is newly discovered, but not inventoried, fall short of satisfying the demands of creditors, no injustice is done to the heir. If, on the other hand, a sale of the whole should be more than sufficient for that purpose, the heir will be entitled to receive the balance. But will no injustice be done to creditors, if the limitation contended for should be adopted ? A large portion of an insolvent estate may escape the diligent search of the administrator, until after the order of sale ; (for the estates of insolvents are generally more involved than others) and this must go to the heir, to the injury of creditors, since the whole would be insufficient to satisfy their demands. Or will it be said,that the administrator may add the new discovered estate to the first inventory, and cover it by a new order of sale 1 As well might you permit him to sell it under the first order, the terms of which are sufficiently general to cover the. whole.
But this train of reasoning leads to an inference, which it is by no means necessary, in this case, to adopt. Whether or not, a general order of sale includes property unknown to the judge at the time of making the order, is a question not to be involved in the determination of the cause before the Court. For, it is apparent on the record, that the existence of the demanded premises, as a part of the estate of Daniel Sheldon, was known to the judge, long before the decree of insolvency, and order of sale. This fact was communicated to the court of probate, by the administrator, when he ex[315] hibited the first inventory ; and the information was recognized by the judge, in his order for accepting and recording the inventory. The demanded premises, therefore, constituting a part of the estate of Daniel Sheldon, were within the knowledge of the judge of probate, and must be supposed to have been in his contemplation, when he made the order of sale. If it were requisite, as undoubtedly it was, for the judge to have ascertained the value of this part of the estate, before he pronounced the decree of insolvency ; then we must presume this to have been done, whether it appear on his records or not ; for, otherwise, we shall impeach the decree. But this fact is not left to presumption only. For it is expressly averred in the plea iri bar, that, on the 5th of January, 1T7"4, long before the decree of insolvency, and order of sale, the administrator caused a true and perfect inventory of all the estate of Daniel Sheldon, which had not. been before inventoried, to be made, and that the demanded premises were included. To give force and validity to the decree, we must presume, that the judge had this before him, and took into his calculation the value of this part of the estate, when he decreed it to be insolvent. It is said, however, that this second inventory was not accepted, by the judge, and ordered to be recorded. It may be answered, that the averment is inadmissible ; because, if such acceptance were requisite, the averment impeaches a decree of a court of probate having competent jurisdiction ; and such decree cannot be impeached in a collateral action. On the contrary, if such acceptance and order of record, were necessary to give validity to the decree, then they must be presumed. But, it may well be doubted whether such acceptance be necessary for the purpose, which we are now considering. The inventory of an estate represented insolvent is required, by the judge, as one article of evidence, to enable him to determine correctly, whether the estate be solvent, or insolvent. Now, does not an inventory, regularly taken by two or three indifferent freeholders under oath, furnish the same degree of evidence to the judge of probate, before, as after, acceptance ? Is it not Inconceivable, [316] that an official act of his own, though it may be indispensibly necessary to give the inventory the force of evidence before other courts, should increase the impression intended to be made on his mind, who has the power of acceptance, and rejection ?
But, to conclude, Daniel Sheldon died in 1772 ; the same year, the administrator exhibited a partial inventory of his estate, notifying the judge of the existence of the demanded premises, not included in the inventory ; of which notice there is record evidence. In 1774, he took an additional inventory including these lands. In 1785, eleven years after, the judge decreed the estate to be insolvent, and ordered the administrator to sell the whole of the estate of Daniel Sheldon, deceased, both real, and personal, at public vendue. And after all this we are urged, not by a creditor who neglected to exhibit his demand to the commissioners, but by the heirs at law, to pronounce the sale made under this order, void, not because there was sufficient estate to satisfy the .demands of the creditors without it, for this was not the fact ; not because this estate was not within the knowledge of the judge of probate, and therefore could not be presumed to have been in bis contemplation, when he made the order but because the inventory of this property did not, at that time, appear of record.
The Court are of opinion, that the limitation of the order of sale, contended for by the plaintiffs below, is inadmissible ; and that the order must be taken to extend, at least, to all the estate of Daniel Sheldon, at that time known to the judge ; and that this includes the demanded premises. Consequently, the plea in bar is sufficient, and ought to have been so adjudged by the Court below. The judgment of the Superior Court must be reversed.