Cutts v. Haskins

The authority to grant administration upon the estate of a deceased intestate, who was, at his death, an inhabitant of the commonwealth, is vested exclusively in the judge of probate for the county where such deceased person dwelt at the time of his death; and the doings of any other judge of probate on such estate are void.

This-was a real action, brought to recover an undivided moiety of the land described in the writ; the demandants claiming as cousins and heirs of one Silence Elliot, deceased, who, they allege, was seised of the same within fifty years before the bringing of the action. At the trial, which was had upon the general issue, before Parker, J., November term, 1811, in this county, the seisin of the said Silence was proved, and the relation of the demandants, as set forth ; so that, as heirs at law, they were entitled to recover, unless the defence relied upon was legal and sufficient. It appeared in evidence that, in 1771, John Elliot died seised of the demanded premises, leaving the said Silence, Sarah Elliot, and Joseph Elliot, his children and heirs, and that, in the division of his estate, the demanded premises were assigned to the said Silence and Sarah ; — that the said Silence and Sarah were born in Boston, but, after the death of their father, viz., in 1776, they went with their brother to the town of Natick, in the county of Middlesex, where they continued to live until their respective deaths, and that they died there ; — that the said Silence and Sarah were born deaf and dumb, and were considered by the judge of probate as non compos at the time of their father’s death, and ever afterwards ; and that the said Haskins was duly appointed their guardian in 1782 ;—that the said Sarah died in 1787, and the said Silence in 1790 ; — that in 1790 letters of administration upon the estates of the said Sarah and Silence were granted by the judge of probate for the county of Suffolk to said Haskins, who soon after settled his guardianship accounts, and a balance was found due to him from the said Sarah of 171?. 19s. le?. and from the said Silence of 125?. 3s. 4c?.; — that the appraised value of the real estate of the said Silence and Sarah severally was 167?. 10s. and it was finally sold at auction for 369?.; — that the said Haskins, administrator *as aforesaid in January, 1791, made application to the Court of Common Pleas for the county of Suffolk for leave to sell the whole of the real- estate of the said Sarah and Silence, for the payment , of the balances due to him from their respective estates, which was granted him; but it did not appear that any bond was ever given by him, to account for the proceeds of the sale of said estates, or either of them ; — that on the final settlement of the said Haskins’s accounts as administrator of the estate of said Silence, a balance was found against him of 42?. 17s. 4c?.; but that the estate of the said Sarah proved insufficient for the payment of her debts; — that the sale of said estate was made publicly on the 5th of March, 1791, John Haskins, Jun., the son of the tenant being the purchaser; and this latter, by his deed of bargain and sale dated the 17th day of the same March, reconveyed to his father that part of the real estate of the said Sarah and Silence, which is described in the demandant’s writ. The several documents from the probate office, and the deeds used at the trial, came up in the case for the consideration of the Court. There was no evidence of any unfairness in the sale, or any privacy in managing it; and the price obtained was a fair one, according to the value of the property at the time of sale. Objections were made to the jurisdiction of the Court of Probate for the county of Suffolk, in granting the letters of administration and the other proceedings relative to these estates, on the ground that, although the said Sarah and Silence were natives of, and had been inhabitants of, Boston, yet, at the time of their deaths, they were inhabitants of, and residents in, the said town of Natick, and had been so from 1776. The notifications of the administration, and also of the sale, were likewise objected to ; because it did not appear that they were published in any town adjoining to Natick, where the deceased last dwelt; the publication having * been made as if they had died in Boston, except that notice of the time and place of sale was published in the said town of Natick. It was also objected that the evidence from the probate office, and the certificate of the judge of probate, were not sufficient foundation for a license for the sale of the whole of the real estate of the deceased. All which objections were overruled by the judge, and a verdict taken for the tenant, reserving the law for the opinion of the whole Court. The cause was argued at the last March term in this county, by Prescott and Ward for the demandants, and by Dexter and Jackson for the tenant.