The opinion of the court was delivered by
Walker, J.
This case must be decided upon the validity and scope of the deed of Barnabas Ellis, as administrator of the estate of Joseph Brewer, to John P. Colburn, of t.he land described therein and in the bill, which is described as being all the land of the deceased, “ except the widow’s dower,” and as being situated in the town of Fair Haven.
The orators trace their title back to said deed, and the validity and force thereof determines the right of the parties. The heir, Joseph C. Brewer, had no title or interest therein which the Probate Court could have legally assigned to him on the death of the widow of the intestate, if said deed is valid and conveyed the reversion of the widow’s dower.
Joseph Brewer died in 1829, and his estate was settled' in the Probate Court for the district of Fair Haven, in which he resided at the time of his death.
The objections to the validity of the deed are, first, that there is in evidence no record of any order of the Probate Court granting a license to the administrator to sell the land in question; second, that no original license to such administrator is produced in evidence; third, that, if a license was granted, the administrator, in making the sale, did not follow the directions therein. The deed is dated the 6th day of September, 1831, and contains the following recital:
“ Whereas the honorable Probate Court for the district of Fair Haven, at a session thereof holden at Castleton, in said district, on the 16th day of March, A. D. 1830, on application for that purpose, did license and authorize me to sell at public auction so much of the real estate of the said deceased as should amount to the sum of three hundred and fifty dollars, for the payment of the just debts of the said deceased, with incidental charges; and whereas, having previously [30]*30taken the oath by law required, I sold the real estate hereinafter described at private sale,” etc.
This deed, with the recital and the testimony of Benjamin F. Gilbert, establishes the fact that Barnabas Ellis acted as administrator of the estate of said Joseph Brewer, and that as such administrator he offered the land described in the deed for sale at public auction to pay the debts of the deceased, and not receiving a satisfactory bid for it, the same was not sold at that time.
The agreed statement of facts filed in the case shows that the probate records of the district of Fair Haven, from the year 1820 to the year 1842, which includes the period of time during which the estate of the intestate, Joseph Brewer, was in process of settlement, are lost and destroyed, and cannot be found, and that none of the original files and records of said Probate Court, relating to the settlement of the estate of Joseph Brewer, can be found, and that no license can be found from said Probate Court to Barnabas Ellis, as such administrator, to sell and convey the real estate of said Brewer; and that said Ellis died in 1860, and that all his private papers, and all the papers relating to the estate of said Brewer, have been destroyed by fire.
The presumption, omnia rite esse acta, has been said to apply with special force to the proceedings of Probate Courts. And after so great a lapse of time, although we cannot make any presumption against Joseph C. Brewer, the defendant heir, on the ground of long possession by the orators and their grantors, merely, we are compelled to take into account the impossibility of showing the true state of facts as they existed at the time of the settlement of said Joseph Brewer’s estate.
There can be no doubt that the probate judge of the district of Fair Haven, during that period, caused everything to be recorded which the law required to be of record in his office pertaining to titles of real estate. And after the lapse of over fifty years, and the loss of the probate records and [31]*31files covering the period involved, the presumption from these facts and the other facts shown in the case is, that everything which ought to have been done in relation to the granting of the license and perfecting the deed was done; that Barnabas Ellis was duly appointed administrator of the estate of said intestate; that a license was regularly granted to said administrator to sell the real estate of the said deceased; that all the necessary preliminary steps to it were regular, and in compliance with the law; that the land in question was deeded by the administrator under the authority of said license; that after making the sale the license was duly returned to the Probate Court by the administrator with a statement of his doings thereon indorsed, and that all were duly recorded in the probate office upon a book which is now lost; also that said license gave said administrator power to sell the real estate either at public auction or private sale, and that the sale was made in strict compliance with the license and the orders of the court contained therein.
The recital in the deed is not conclusive of the directions given in the license as to the manner of sale; for the law did not then require that the deed should set forth the manner in which the court ordered the land to be sold. It is the license itself which determines the manner in which the sale is directed to be made. As the sale was a private sale, the presumption is, as before stated, that the license authorized a private sale; that is, from the facts which appear in the case and the lapse of-time, the presumption is that the license was broad enough to uphold a deed given pursuant to a private sale, inasmuch as the law at that time gave the Probate Court power to grant a license to sell at private sale.
And again, if the recitals in the deed were material, after such a sale and lapse of time, we should not allow the title to be defeated by proof outside of the record of the license. All deficiencies in the recitals of an order will be supplied by intendment. Whatever legal order of the court was [32]*32necessary to uphold the deed, after such a lapse of time and loss of the probate files and the books of record, is presumed to have been made and duly recorded. No possibility of supplying the lost files and records and doing justice to the purchasers of the property otherwise longer remains; and the law in such case will not allow the regularity of the proceedings of the Probate Court, and of an administrator acting under its order, to be disturbed and broken up by failure to prove them by reason of the loss of the original files and records of the court so as to injure bona fide purchasers by defeating their titles.
To hold otherwise would, work a great injustice to the orators whose title depends upon the deed in question.
Courts will not permit an heir to come in under such a state of facts and defeat a title conferred by an administrator’s deed, regular in form and duly recorded in the registry of deeds, and break up the settlement of an estate.
The doctrine of introducing presumptions to uphold a title in such cases is not new. Judge Hutchinson, in Hazard v. Martin, 2 Vt. 77, says: “ It is founded on that substantial principle of justice that when a man’s rights have slept till the assertion of them would spread destruction among the rights of others, they must sleep forever.”
We think that the deed in question must be upheld as valid upon numerous authorities in this State and other States; see Hazard v. Martin, supra; Doolittle v.
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The opinion of the court was delivered by
Walker, J.
This case must be decided upon the validity and scope of the deed of Barnabas Ellis, as administrator of the estate of Joseph Brewer, to John P. Colburn, of t.he land described therein and in the bill, which is described as being all the land of the deceased, “ except the widow’s dower,” and as being situated in the town of Fair Haven.
The orators trace their title back to said deed, and the validity and force thereof determines the right of the parties. The heir, Joseph C. Brewer, had no title or interest therein which the Probate Court could have legally assigned to him on the death of the widow of the intestate, if said deed is valid and conveyed the reversion of the widow’s dower.
Joseph Brewer died in 1829, and his estate was settled' in the Probate Court for the district of Fair Haven, in which he resided at the time of his death.
The objections to the validity of the deed are, first, that there is in evidence no record of any order of the Probate Court granting a license to the administrator to sell the land in question; second, that no original license to such administrator is produced in evidence; third, that, if a license was granted, the administrator, in making the sale, did not follow the directions therein. The deed is dated the 6th day of September, 1831, and contains the following recital:
“ Whereas the honorable Probate Court for the district of Fair Haven, at a session thereof holden at Castleton, in said district, on the 16th day of March, A. D. 1830, on application for that purpose, did license and authorize me to sell at public auction so much of the real estate of the said deceased as should amount to the sum of three hundred and fifty dollars, for the payment of the just debts of the said deceased, with incidental charges; and whereas, having previously [30]*30taken the oath by law required, I sold the real estate hereinafter described at private sale,” etc.
This deed, with the recital and the testimony of Benjamin F. Gilbert, establishes the fact that Barnabas Ellis acted as administrator of the estate of said Joseph Brewer, and that as such administrator he offered the land described in the deed for sale at public auction to pay the debts of the deceased, and not receiving a satisfactory bid for it, the same was not sold at that time.
The agreed statement of facts filed in the case shows that the probate records of the district of Fair Haven, from the year 1820 to the year 1842, which includes the period of time during which the estate of the intestate, Joseph Brewer, was in process of settlement, are lost and destroyed, and cannot be found, and that none of the original files and records of said Probate Court, relating to the settlement of the estate of Joseph Brewer, can be found, and that no license can be found from said Probate Court to Barnabas Ellis, as such administrator, to sell and convey the real estate of said Brewer; and that said Ellis died in 1860, and that all his private papers, and all the papers relating to the estate of said Brewer, have been destroyed by fire.
The presumption, omnia rite esse acta, has been said to apply with special force to the proceedings of Probate Courts. And after so great a lapse of time, although we cannot make any presumption against Joseph C. Brewer, the defendant heir, on the ground of long possession by the orators and their grantors, merely, we are compelled to take into account the impossibility of showing the true state of facts as they existed at the time of the settlement of said Joseph Brewer’s estate.
There can be no doubt that the probate judge of the district of Fair Haven, during that period, caused everything to be recorded which the law required to be of record in his office pertaining to titles of real estate. And after the lapse of over fifty years, and the loss of the probate records and [31]*31files covering the period involved, the presumption from these facts and the other facts shown in the case is, that everything which ought to have been done in relation to the granting of the license and perfecting the deed was done; that Barnabas Ellis was duly appointed administrator of the estate of said intestate; that a license was regularly granted to said administrator to sell the real estate of the said deceased; that all the necessary preliminary steps to it were regular, and in compliance with the law; that the land in question was deeded by the administrator under the authority of said license; that after making the sale the license was duly returned to the Probate Court by the administrator with a statement of his doings thereon indorsed, and that all were duly recorded in the probate office upon a book which is now lost; also that said license gave said administrator power to sell the real estate either at public auction or private sale, and that the sale was made in strict compliance with the license and the orders of the court contained therein.
The recital in the deed is not conclusive of the directions given in the license as to the manner of sale; for the law did not then require that the deed should set forth the manner in which the court ordered the land to be sold. It is the license itself which determines the manner in which the sale is directed to be made. As the sale was a private sale, the presumption is, as before stated, that the license authorized a private sale; that is, from the facts which appear in the case and the lapse of-time, the presumption is that the license was broad enough to uphold a deed given pursuant to a private sale, inasmuch as the law at that time gave the Probate Court power to grant a license to sell at private sale.
And again, if the recitals in the deed were material, after such a sale and lapse of time, we should not allow the title to be defeated by proof outside of the record of the license. All deficiencies in the recitals of an order will be supplied by intendment. Whatever legal order of the court was [32]*32necessary to uphold the deed, after such a lapse of time and loss of the probate files and the books of record, is presumed to have been made and duly recorded. No possibility of supplying the lost files and records and doing justice to the purchasers of the property otherwise longer remains; and the law in such case will not allow the regularity of the proceedings of the Probate Court, and of an administrator acting under its order, to be disturbed and broken up by failure to prove them by reason of the loss of the original files and records of the court so as to injure bona fide purchasers by defeating their titles.
To hold otherwise would, work a great injustice to the orators whose title depends upon the deed in question.
Courts will not permit an heir to come in under such a state of facts and defeat a title conferred by an administrator’s deed, regular in form and duly recorded in the registry of deeds, and break up the settlement of an estate.
The doctrine of introducing presumptions to uphold a title in such cases is not new. Judge Hutchinson, in Hazard v. Martin, 2 Vt. 77, says: “ It is founded on that substantial principle of justice that when a man’s rights have slept till the assertion of them would spread destruction among the rights of others, they must sleep forever.”
We think that the deed in question must be upheld as valid upon numerous authorities in this State and other States; see Hazard v. Martin, supra; Doolittle v. Holton, 26 Vt. 588; Same v. Same, 28 Vt. 819; Townsend v. Downer's Est. 32 Vt. 183; Gray v. Gardner, 3 Mass. 399; Colman v. Anderson, 10 Mass. 104; Blossom v. Cannon, 14 Mass. 176; Winkley v. Kaime, 32 N. H. 268; Coxe v. Deringer, 78 Pa. 271; Simson v. Eckstein, 22 Cal. 580; Lawson’s Presumptive Ev. 419.
The recital in the deed and the parol evidence show that the sale of the real estate was made for payment of debts; and as it was competent at that time for the Probate Court to order the sale of the real estate, including the reversion [33]*33of the widow’s dower, for payment of debts, it is presumed, in the absence of the record by reason of its loss, that the license authorized the administrator to sell all of the real estate including the reversion of the widow’s dower, for the purpose of paying debts allowed against the estate of the intestate.
It is contended by the defendant that the description of the land as given in the deed does not include the reversion of the widow’s dower; that the words of the exception in the deed, “ except the widow’s dower,” include not only the widow’s right to the use of one third of the real estate during her life, but also the reversion thereof. We do not think this contention can be sustained. Here the whole parcel of land was described by metes and bounds, and as “ being all the real estate in Fair Haven whereof the said Joseph Brewer died seized except the widow’s dower.”
The encumbrance that was left on the property was simply the widow’s dower. The manifest intention of the description was to except only the widow’s right to the use of a third of the real estate, described, during her life.' The words were apt, and such words as are commonly used in describing a widow’s right to the use of one third of the real estate left by the deceased husband during her life.
They are not fairly susceptible of any other construction. They are not descriptive of a piece of land in which the widow had only a life estate, but of the life estate itself. And we think the words of the exception taken alone, and especially so when taken in connection with the words used in the granting clause of the deed, must be understood as referring to the interest which the widow had in the land described, and that the exception is limited to that interest.
It is manifest from the evidence and surrounding circumstances that the reversion was as fully paid for as the other two thirds of -the parcel; and the presumption is that the administrator fully accounted for the avails of the sale of the whole and that the same were applied, by order of the [34]*34Probate Court, towards the extinguishment of the debts of the intestate. The defendant obviously has not by the deed of the reversion of the widow’s dower been deprived of any legal right or interest therein, as the heir of his deceased father.
The result is that the decree of the Court of Chancery is modified and cause remanded with a mandate that a decree be entered for the orators in accordance with the foregoing views of the court, holding that said Ellis’s deed as administrator of the estate of Joseph Brewer to John P. Colburn, dated September 6, 1831, of the parcel of land described therein, is a valid administrator’s deed executed according to the requirements of the license authorizing the sale and conveyance, and conveyed all the parcel described, subject only to Joseph Brewer’s widow’s right of dower therein; that the defendant, Joseph C. Brewer, has no right or interest therein as the heir of Joseph Brewer, and that he be perpetually enjoined and restrained from further prosecuting the ejectment suit named in the bill of complaint against the orators, and from interfering in any way with the orators’ exclusive enjoyment of said premises as against him under his claim as heir of said Joseph Brewer or under any assignment of said premises or any part thereof to him as such heir by the Probate Court.