Judge of Probate v. Simonds

If a creditor, -whose debt accrued before the passage of tíre homestead act, present his claim to the commissioner on an insolvent estate, take his dividend and without objection allow the widow’s homestead to be assigned by the probate court, and' the administrator, for the payment of debts, sells the land assigned subject to the widow’s homestead, such creditor cannot afterwards require the administrator to sell any interest of the estate in the land assigned for homestead to pay the balance of his debt. In such case if a creditor would enforce his claim against the widow’s right of homestead he should object to the assignment till his debt is paid.

Debt on the official bond of Simonds-.aa administrator of the estate of Ebenezer Cheney, jr., deceased. The action is prosecuted by and for the benefit of Bard P. Paige, a creditor of the estate. Simonds was appointed administrator at the July Term, 1863, of the probate court. At the August Term, 1863, the estate was decreed to be administered as insolvent, and a commissioner was appointed. Paige presented his'claim, being a judgment recovered by him against Cheney in the Merrimack C. C. Pleas, October Term, 1850, founded upon a promissory note for two hundred and twenty-five dollars, dated August 27, 1847, to the commissioner for allowance, and it was allowed by him to the amount of $498.34. The commissioner’s report, including various other claims, together with that of Paige, was duly accepted at the April Term, 1864, and subsequently, at the September Term, 1864, a dividend was decreed among the claims allowed by the commissioner. That dividend was about 26 per cent., and amounted on Paige’s claim to $136.84, which was accordingly paid to him by the administrator. Previously to this dividend, the administrator had duly obtained license from the probate court to make sale of the real estate of the deceas'ed, including equities of redemption and reversions of dower and homestead, to pay debts. The real estate consisted of the homestead farm of the deceased, in Bradford, in which his widow, who is still living, had a right of dower and also of homestead, and which was also subject to a mortgage dated February 6, 1863, to one Joña. H. Maxon, which was in form a homestead mortgage, but was not signed by the wife. In May, 1864, the administrator, under the license, made sale of all the right, title and interest of the deceased, at the time of his death, in said farm, describing the same as subject to the mortgage and also to the widow’s rights of dower and homestead, and conveyed the same accordingly, the widow being the purchaser. The proceeds of that sale were included in the dividend before mentioned. The widow’s dower and homestead had been set off and assigned to her by the probate court before the application by the administrator for license to sell real estate, to wit, at the December Term, 1863. The real estate aforesaid, with some personal property, constituted the whole estate of the deceased. All the personal property has been disposed of, and the proceeds were included in the dividend; and there are no assets remaining in the hands of the administrator for payment towards the balance of the claims allowed by the commissioner, remaining after the dividend, unless that portion of the real estáte set off and assigned to the widow as a homestead constitutes such assets as to Paige’s claim. After the sale and conveyance by the administrator as aforesaid, to wit, on the 26th day of July, 1864, Paige, by his attorneys, made the following request in writing to the administrator: To Franklin Simonds, Esq., Administrator of the estate of Ebenezer Cheney, jr., late of Eradford,, deceased: The undersigned, Bard P. Paige, respectfully represents that he has a claim against the estate of said deceased, founded on a judgment rendered against the said Cheney, in the court of Common Pleas for the county of Merrimack, on the 14th day of October, 1850; which said claim was duly presented to the commissioner on said estate, and by him allowed, amounting to the sum of §498.34, and that the personal and real estate which has been sold, is insufficient to pay his said claim in full. He further represents that a homestead in said estate of the deceased, to the value of five hundred dollars, has been set off to the widow; and that, as against his said claim there can be no homestead, or reversion of homestead. He respectfully requests you to procure a license from the judge of probate, for said county, and to sell the real estate set out as the widow’s homestead, as aforesaid, and any other real estate of the deceased, or interest therein, and to satisfy his said claim. Dated the 26th day of July, 1864. Bard P. Paige, By his Att’ys, Tappan & Sanborn. The administrator has not complied with this request. The foregoing facts appeared upon an agreed case.