Snow v. Russell

45 A. 305, 93 Me. 362, 1899 Me. LEXIS 57

• Court: Supreme Judicial Court of Maine
• Decided: December 15, 1899
• Status: Published

Opinion

Savage, J.

Appeal from decree of presiding justice dismissing the bill of complainant. The complainant claims title to certain real estate described by mesne conveyances from the heirs of Submit C. Russell. The defendant George F. Russell claims title to the same premises by a conveyance from the executor of the last will and testament of Submit O. Russell. He alleges that the sale to him was made under license from the probate court, after due proceedings had, and was made for the purpose of raising money to pay the debts of the estate of Submit O. Russell. The complainant replies that one of the debts named in the petition for license to sell was a fraudulent and collusive judgment obtained by George F. Russell against his father John H. Russell, as executor, and that the personal estate of Submit C. Russell was sufficient to pay all the valid indebtedness of the estate, together' with the expenses of administration. He also alleges that the conveyance from the executor to George F. Russell was without consideration except for the fraudulent and collusive judgment set forth, and that the conveyance was made in execution of a scheme to defraud him, to create a cloud upon the title of his real estate, and deprive him of his right to the same. The complainant replies further that the license under which the sale to George F. Russell was made was void, and that the sale and deed and all proceedings thereunder were void, for the reason that the executor, before making the sale, gave no bond to the judge of probate under the provisions of R. S., chap. 71, § 4.

The answer of the defendants to these contentions of the complainant is that the judgment complained of was neither fraudulent nor collusive, but was in every respect valid ; and that he was excused from giving bond upon obtaining the license to sell real estate, by a valid decree of the judge of probate, under one of the provisions of the will of Submit O. Russell, which was, after nominating her husband, John H. Russell, as executor, “ that no official bond in his said capacity be required to be filed in the probate court by him,” and further, inasmuch as no appeal was taken, that the decree of the probate court, excusing the executor from filing bond, is conclusive in this proceeding.

The defendants, other than George F. Russell, are mortgagees, holding a mortgage from George F. Russell, given after he obtained the deed from the executor.

The complainant prays that the alleged fraudulent judgment may be annulled, that the cloud upon his title be removed by cancelling the executor’s deed to George F. Russell, and the mortgage deed of George F. Russell to the other defendants,

The presiding justice found, and we assume it to be true, that Submit C. Russell died February 7, 1896, testate; that her will was admitted to probate on the third Tuesday of March, 1896, and her husband, John H. Russell, was appointed executor, and was not required to give bond as such; and that in the meantime, certain of the heirs and devisees of Submit C. Russell had conveyed their interests in her real estate, which is the land described in this bill, to John H. Russell, and his title afterwards came to the complainant. But, of course, the title or ownership of the complainant in the land was subject to the right of the executor afterwards, if necessary, to cause it to be taken and sold for the payment of the debts of the estate. It further appears that suit was brought by George F. Russell against John H. Russell as executor, and the judgment complained of was obtained in November, 1897. In March, 1898, the executor petitioned the probate court for license to sell the real estate described, for payment of debts, and after due proceedings, on April 13, 1898, that court decreed that he have license to sell at public or private sale, without giving bond. No appeal was taken from this decree. License was issued, and under it, the executor sold the real estate to George F. Russell, and made, executed and delivered to him a deed of the same. It should be said, also, that the testatrix, in the will, requested that “no official bond be required to be filed by” the executor “in his said capacity.”

In view of the conclusion we have reached, it is not necessary to state any other facts. The first question which arises concerns the validity of the executor’s deed. If that was invalid, then the complainant has a plain and adequate remedy at law, without the aid of the court in equity, and it will not be necessary in this case to consider the questions of fraud and collusion. For if the deed fails, all prior proceedings are, for the present, immaterial.

The presiding justice found that the probate court, in granting the license, “adjudged, that under the provisions of the will, no bond was required,” and ruled that, as no appeal was taken, the decree was conclusive. Was this ruling correct?

• The jurisdiction and powers of the probate court, with respect to the settlement of the estates of deceased persons, are defined by statute. That court has no common law jurisdiction. Its jurisdiction is special and limited, and it has no powers save those conferred upon it by statute. So it is likewise true that the proceedings in petitioning for license to sell real estate, when it is necessary for the payment of debts, the granting of the license, and the conditions precedent to the authority to make a valid sale, are all regulated by statute. It is provided in R. S., c. 71, § 4, that persons licensed to sell real estate, “before proceeding to make such sales . . . . shall give bond to the judge for a sum, and with sureties to his satisfaction,” conditioned for observing all provisions of law for thé sale, for using due diligence, and for applying and accounting for the proceeds of the sale. This is the requirement of the statute, irrespective of the decree of the judge of probate. The giving of such a bond is a prerequisite to the right by the executor to make a valid sale. Campbell v. Knights, 26 Maine, 224; Parker v. Nichols, 7 Pick. 111. In these cases, the sales were held invalid, on account of the failure of executors to make the oath then required by statute, but the reasons given are equally applicable here. Such sales are in derogation of the rights of heirs and devisees, and it has always been held that a purchaser under such a statute sale is bound to show strict compliance with statutory requirements, if his title is called into question. It follows then, that unless relieved by other sections of the statutes, the executor acquired by his license no authority to sell; and if he had no authority, he could not make a valid sale. The supposed authority for issuing such a license without bond is found in R. S., c. 64, § 8, where it is provided that “letters testamentai’y may issue, or sales of real estate may be made under the provisions of a will, without the executor giving bond .... when the will so provides.” But this provision is of no avail here. This sale was not made “ under the provisions of a will.” This will makes no provisions for the sale of real estate. It gives no authority to the executor to sell real estate. It is silent in regard to the disposition of the real estate, except by devise. A testator in his will may authorize his executor to sell the real estate, to pay legacies or debts, and he may authorize him to do so without giving bond. A testator may do this, but the court cannot. And this testator did not give such authority.

The defendants strongly contend, however, that it is now too late to question the validity of the license or of the sale made under it. Their position is that the judge of probate had jurisdiction of the subject matter, and that his decree therein, not appealed from, is conclusive. As to this, it may be observed, in the first place, it is the statute, and not the judge of probate, which imposes upon the executor the duty of giving bond. The decree of the judge cannot make it any more or any less his duty to give a bond. The judge has no authority given him by statute to excuse the giving of such a bond. It may be argued that the judge of probate must of necessity decide in each instance whether a bond is required by statute or not. So he must. But if he decide erroneously, as in this case, does it follow that his decree, in violation of the statute, remains in force, until reversed ? If so, he may, by mistake, nullify a statute. Is not such a case rather like the many others where judges of probate have assumed jurisdiction, and mistakenly exercised powers not given them by statute, and where their decrees have been held to bo void? Suppose, for instance, that a judge of probate should erroneously issue letters of administration to an administrator, or letters of guardianship to a guardian, without taking bond, would such persons be authorized to act? Suppose he should grant administration, in violation of the statute, after the intestate had been dead twenty years, as in Wales v. Willard, 2 Mass. 124; or suppose he should appoint a guardian to an insane person without inquisition, and without notice, as in Coolidge v. Allen, 82 Maine, 23; is there any question but that such decrees would be void? We think not. It has been so held in the cases cited, and in many others. See Hunt v. Hapgood, 4 Mass. 117; Sumner v. Parker, 7 Mass. 77; Smith v. Rice, 11 Mass. 507.

• In the eases above supposed, the probate court would undoubtedly have jurisdiction to grant administration, or to appoint a guardian, but in so far as it exceeded its statutory powers in the exercise of its jurisdiction, its acts would be void ; and being void, we think they would not be validated by the failure to take an appeal.

We think some confusion may have arisen in the use of the word “jurisdiction” in the decisions. It is frequently said that the decrees of probate courts, touching matters within their jurisdiction,, when not appealed from, are conclusive upon all persons. See McLean v. Weeks, 65 Maine, at p. 421; Decker v. Decker, 74 Maine, 465. And hence it may have been concluded that inasmuch as the licensing of sales of real estate is within the jurisdiction of the probate court, therefore all its decrees relative thereto are conclusive. But we think this conclusion is not the correct one. The rule is stated more precisely and accurately in Waters v. Stickney, 12 Allen, 1, where it is said that “decrees of probate courts in matters of probate, within the authority conferred upon them by law, are conclusive.” The distinction we note has been discussed in cases in this state and Massachusetts.

In Smith v. Rice, 11 Mass. 507, (decided in 1814, while we were a part of Massachusetts), the court said: “But if it appear that the judge of probate exceeded his authority, or that he has undertaken to determine the rights of parties over whom he had no jurisdiction, .... or that he has proceeded in a course expressly prohibited by law, in all such cases, the party aggrieved, if without any laches on his part he has had no opportunity to appeal, may consider the act or decree void.....The defect is not confined to what may be considered strictly a want of jurisdiction of the cause; but if the inferior tribunal proceed in a manner prohibited, or not authorized by law, the proceeding is void.” This case was cited with approval of this position in Peters v. Peters, 8 Cush. 529.

In Wales v. Willard, 2 Mass. 124, the court said: “It (a decree not appealed from) is not therefore an erroneous exercise of his judgment, but it is an assumption of power against law, and the grant is ipso facto a nullity.” There, as here, the point was raised that the decree was conclusive until reversed on appeal, and it was expressly overruled. Sumner v. Parker, 7 Mass. 79.

The court in Pierce v. Prescott, 128 Mass. 140, after stating the rule that judgments of probate courts on all matters within their jurisdiction are conclusive, said: “The law is so laid down by this court, although it is sometimes said, as if in qualification of the rule, that, although the probate court has jurisdiction over the subject matter, yet if it clearly exceeds its powers, or does an act prohibited by law, its decree may be avoided in collateral proceedings as well as by appeal; but this is only one way of saying that where the jurisdiction of the court over the subject matter is in any particular limited, then its decree is not binding, if it oversteps the limits fixed. It is not in such case the indiscreet exercise of a power granted, but the doing of an act for which no power is given, or which is expressly prohibited.”

Our own court, in Coolidge v. Allen, supra, said: “It is undoubtedly true that a judgment of the probate court upon matters within its jurisdiction is conclusive until it is reversed. But it is equally true that jurisdiction of the subject matter only is not sufficient. The preliminary requisites, and the course of proceedings prescribed by law, must be complied with or jurisdiction does not attach, and the judgment will be, not voidable merely, but void, and may be avoided by plea and proof.”

The distinction noted is well illustrated in this case. The judge of probate adj udged that there was a necessity for the sale of the real estate to pay debts. Such a judgment would be conclusive unless appealed from. It is a question which the law authorizes him to determine. It is within his jurisdiction to decide whether there is a necessity for a sale or not. But the law has not authorized him to decide that an executor, need, or need not, give a bond before he can sell real estate under a license. The statute itself has decided that question.

We are, therefore, of the opinion that the decree of the probate court licensing the sale of the real estate without bond is open to attack collaterally, in an action at law, as well as by appeal, and that therefore the complainant does not require relief in equity.

The complainant is not in possession of the land, and for that reason he cannot seek to have the alleged cloud upon his title arising from the executor’s deed removed by proceedings in equity. He has a plain, adequate and complete remedy at law. As was said in Robinson v. Robinson, 73 Maine, 170, “it is not the purpose of equity to try titles to real estate and put one party out of possession and another in.” Gamage v. Harris, 79 Maine, 531, and cases cited.

The bill must be dismissed, and we think, under the circumstances of the case, it should be dismissed without prejudice and without costs. If the defendant Russell seeks further to collect his judgment, all the questions involved can, and properly should, be determined by the probate court, either upon a new application for license to sell real estate, if any is made, or upon a settlement of the executor’s account.

Bill dismissed without prejudice.