1. The recital in the record of proceeding of a probate court,
under a statute of Wisconsin Territory, of facts necessary to give
such court jurisdiction is
prima facie evidence of the
facts recited.
2. The jurisdiction existing, the subsequent action of the court
is the exercise of its judicial authority, and can only be
questioned on appeal, the mode provided by the law of the territory
for review of the determinations of the court.
Where a statute of the territory provided that the real estate
of the decedent might be sold to satisfy his just debts when the
personalty was insufficient, and authorized the Probate Court of
the county where the deceased last dwelt or in which the real
estate was situated to license the administrator to make the sale
upon representation of this insufficiency, and "on the same being
made to appear" to the court, and required the court, previously to
passing upon the representation, to order notice to be given to all
parties concerned or their guardians who did not signify their
assent to the sale to show cause why the license should not be
granted,
held that the representation of the insufficiency
of the personal property of the deceased to pay his just debts was
the only act required to call into exercise the power of the court.
The necessity and propriety of the sale solicited were matters to
be considered at the hearing upon the order to show cause. A
license following such hearing involved an adjudication upon these
points, and such adjudication was conclusive.
3. Where an administrator had been appointed, and after giving
the required bonds informed the court that he was unable to act,
and resigned the appointment, not having taken possession of the
property of the intestate or attempted to exercise any control over
it, it was competent for the court to accept the resignation, and
to appoint a new administrator. The power to accept the resignation
and to make the second appointment under these circumstances were
incidents of the power to make the first.
4. A second license to an administrator to sell property already
sold by him,
Page 70 U. S. 397
and a second purchase of it by the same party who had already
bought it before, is not evidence of fraud in the first sale.
5. The title of a purchaser at an administrator's sale is not
affected by the fact that the proceeds of the sale exceeded the
amount of the alleged debts of the decedent, for the payment of
which such sale was ordered.
A statute of Wisconsin Territory ordained that there should be
appointed by the Governor, in and for each county, a person to be
known as "the public administrator" thereof, and when any person
shall die intestate, leaving personal property within the territory
but leaving no widow, next of kin, or creditor living therein,
"administration" -- the statute went on to say -- "
shall
be granted" to the "public administrator" of the county in which
the intestate died, or, if the decedent have been a nonresident, of
the county in which the estate may be found. The statute further
ordained that when administration shall have been granted to any
public administrator, and it shall afterwards appear that there is
a widow, next of kin &c., the judge of probate shall -- on
application to do so made within six months after such grant --
revoke the letters granted to the public administrator and grant
them to such widow, next of kin &c., according to law.
In force in the same territory, along with this statute, was
another, distinct and independent of it, providing, much as others
do in different states, for the sale, under order of the county
probate court, of the real estate of decedents, to pay debts when
personalty left is insufficient to do so. It enacted that when the
personalty should not be sufficient for this purpose,
"upon representation, and the same being made to appear to the
district or probate court of the county where the deceased person
last dwelt or in the county in which the real estate lies,"
the said court might license the administrator to make sale of
all or any part of the realty, "
so far as shall be
necessary to satisfy the just debts." "The said court," the act
proceeded to say,
"previous to passing on any petition or representation for the
sale, shall order due notice to be given to all parties concerned,
or their guardians, who do not signify their assent to such sale,
to show cause,
Page 70 U. S. 398
at a time and place appointed, why such license shall not be
granted."
With these acts in force in
Wisconsin, and owning
personalty in Iowa County and realty in Grant County,
of that
territory, one Comstock died in
Illinois, having
been, before and at his death, domiciled
there. His
brother was appointed, soon after, administrator, by the Probate
Court of Iowa County, in Wisconsin, but he never took possession of
the property of the estate nor attempted to exercise ownership over
it, and in a short time after his appointment, sent word to the
probate judge that he was unable to attend to the duties of the
administration, and requested that officer to appoint another
kinsman of the decedent, one Ripley, of Illinois, to the place. A
formal resignation sent afterwards was accepted, and Ripley
appointed,
nothing, however, in all the matter of the estate,
appearing about the "public administrator."
A few years afterwards, Ripley, acting under the letters granted
to him in Wisconsin, applied to the Probate Court of Grant County,
in that territory, for license to sell
"so much" of the
real estate of the deceased in the county as would "enable him to
pay the sum of $8,000," together with the costs and charges
attending the sale.
The record of the proceeding -- and this is material -- stated
the fact that written application for the sale had been made. It
set forth the application at length, representing that the personal
property of the deceased was insufficient to pay his just debts by
the sum of about $8,000. It gave the order directing publication of
notice of the application; it recited that due notice had been
given; it contained (by way only, however, of incorporation or
interposition in it) a certificate of a probate justice of Illinois
(in which state it appeared that administration of Comstock's
effects had also been had), that the personal property of the
deceased had been exhausted in payment of his debts, and that there
remained debts unpaid to the amount named. "And it
being made
to appear," the record went on to say, "that it is
necessary and proper that the said administrator should be
licensed" to
Page 70 U. S. 399
make sale of the real estate,
or so much as will enable
him to pay the sum of $8,000,
"due proof of the existence and
amount of said debts being made" to the court, and no person
appearing to make objection, the court adjudged and decreed
that
"the said administrator be licensed, authorized, and empowered
to sell
so much &c., as may enable him to pay the sum
of $8,000, the
debts due and owing from said estate,
together with the costs and charges attending the sale,"
&c.
Ripley made the sale, the purchaser being a certain Crawford,
defendant here and below, and he having received the
administrator's deed and entered into possession, the heirs of
Comstock now brought ejectment against him in the Circuit Court of
Wisconsin, to get back the land. On the trial the defendant
produced and gave in evidence, under objection, the record of the
Probate Court of Iowa County, containing the letters of
administration, resignation &c., and also the record of the
Probate Court of Grant County, above stated, and closed.
After the defendant had thus closed, the plaintiff, for the
purpose of proving collusion and fraud between the
administrator and the purchaser, offered the record of a license to
the administrator to sell the same premises, subsequent in date to
the one above mentioned. The plaintiff offered also to prove that
the administrator had made sales to the extent of $10,000, while
his license to sell was to the extent of but $8,000. But both
offers were refused by the court.
The admission of the letters, resignation, and records of the
probate court and these two refusals were the matters considered on
writ of error here. The record did
not show, however, that
the representation, which was the preliminary step in the
proceeding for the sale, gave the amount and description of the
personal property of the deceased or a statement of the just debts
which he owed. Neither, independently of the certificate of the
probate judge of Illinois, did the order for the sale show --
otherwise than as was to be inferred from the recital just above
quoted, of its being "made to appear that it was
necessary and
proper that the said administrator should be licensed to make
sale of the
Page 70 U. S. 400
real estate" -- that the personal property of the estate was
insufficient to pay the debts.
The defendant had judgment, and the plaintiffs brought the case
here on error.
Page 70 U. S. 402
MR. JUSTICE FIELD delivered the opinion of the Court.
It is only necessary to examine the objections taken to the
appointment of the first administrator, and the subsequent
Page 70 U. S. 403
acceptance of his resignation, so far as they affect the
jurisdiction of the Probate Court. It is well settled that when the
jurisdiction of a court of limited and special authority appears
upon the face of its proceedings, its action cannot be collaterally
attacked for mere error or irregularity. The jurisdiction
appearing, the same presumption of law arises that it was rightly
exercised as prevails with reference to the action of a court of
superior and general authority.
By the statute of Wisconsin under which the administrator was
appointed, the only facts necessary to give the probate court
jurisdiction were the death of the nonresident intestate and the
possession by him, at the time, of personal property within the
territory. Both of these facts are recited in the record of the
proceedings produced by the defendant, which sets forth the letters
of administration at large. These recitals are
prima facie
evidence of the facts recited. [
Footnote 1] They show the jurisdiction of the court over
the subject. What followed was done in the exercise of its judicial
authority, and could only be questioned on appeal, the mode
provided by the law of the territory for review of the
determinations of the court. Whether there was a widow of the
deceased, or any next of kin, or creditor, who was a proper person
to receive letters if he had applied for them, or whether there was
any public administrator in office authorized or fit to take charge
of the estate or to which of these several parties it was meet that
the administration should be entrusted were matters for the
consideration and determination of the court, and its action
respecting them, however irregular, cannot be impeached
collaterally.
The same observations are applicable to the acceptance of the
resignation of the first administrator and the appointment of
Ripley in his place. If the second appointment was irregularly
made, the irregularity should have been corrected on appeal.
Page 70 U. S. 404
But independent of this consideration, there is nothing in the
objection. The power to accept the resignation and make the second
appointment, under the circumstances of this case, were necessary
incidents of the power to grant letters of administration in the
first instance. It does not appear that the first administrator
ever took possession of the property of the intestate or attempted
to exercise any control over it, and his inability to act left the
estate in fact without any administrator. The duty of the court
therefore to provide for its proper administration could not
otherwise have been discharged than by a new appointment.
But the principal reliance of the plaintiffs is placed upon the
objections taken to the action of the Probate Court of Grant County
in ordering the sale. With reference to these objections, as with
reference to the objections taken to the original appointment of
the administrator, it is only necessary to consider them so far as
they affect the jurisdiction of the court.
The proceeding for the sale of the real property of an
intestate, though had in the general course of administration, is a
distinct and independent proceeding authorized by statute only in
certain specially designated cases. But when by the presentation of
a case within the statute the jurisdiction of the court has once
attached, the regularity or irregularity of subsequent steps can
only be questioned in some direct mode prescribed by law. They are
not matters for which the decrees of the court can be collaterally
assailed.
The statute of the territory provided that the real estate of a
decedent might be sold to satisfy the just debts which he owed,
when the personal property of the estate was insufficient to pay
the same. And it authorized the probate court of the county where
the deceased last dwelt or in which the real estate was situated to
license the administrator to make the sale upon representation of
this insufficiency, and "the same being made to appear" to the
court. It also required the court, previous to passing upon the
representation, to order notice to be given to all parties
concerned or their guardians who did not signify their assent
Page 70 U. S. 405
to the sale to show cause why the license should not be
granted.
As thus seen, the representation of the insufficiency of the
personal property of the deceased to pay his just debts, was the
only act required to call into exercise the power of the court. The
truth of the representation was a matter for subsequent inquiry.
How this should be made to appear the statute did not designate,
but from the notice required of the hearing upon the representation
it is clear that the necessity and propriety of the sale solicited
were matters to be then considered. A license following such
hearing necessarily involved an adjudication upon these points. The
jurisdiction to hear was conferred by the representation; the
authority to license followed from the fact which the court was
required to ascertain and settle by its decision. In such case, the
decision of the court is conclusive. [
Footnote 2]
The record of the probate court, produced by the defendant,
states the fact that a written application for the sale was made.
It sets forth the application at length, representing that the
personal property of the deceased was insufficient to pay his just
debts by the sum of about eight thousand dollars; it gives the
order directing publication of notice of the application; it
recites that due notice was given; it contains a certificate of the
probate justice of Illinois that the personal property of the
deceased had been exhausted in payment of his debts, and that there
remained debts unpaid to the amount named, and it states, by way of
further recital, that it had been made to appear to the court that
the sale was necessary and proper to pay such debts of the
existence and amount of which due proof had been given.
To this record it is further objected 1st that the
representation, which was the preliminary step in the proceeding
for the sale, did not give the amount and description of the
personal property of the deceased or a statement of the just
Page 70 U. S. 406
debts which he owed, and 2d that the order for the sale did not
show that the personal property of the estate was insufficient to
pay the debts unless resort was had to the certificate of the
probate justice of Illinois.
The answer to the first objection is found in the fact that the
statute did not require any such particularity of statement with
reference to the property of the deceased, or to the debts which he
owed. It only required a representation of the general fact. The
particularity desired to guide the court was to be obtained at the
hearing of the application.
The answer to the second objection is that the sufficiency of
the proof upon which the court took its action is not a matter open
to consideration in a collateral manner. It does not touch the
question of jurisdiction.
Similar questions were presented for the consideration of this
Court in
Grignon's Lessee v. Astor. [
Footnote 3] That case turned upon the validity of
proceedings for the sale of real property of an intestate under a
statute almost identical in its provisions with the one under which
the sale in the present case was made. And it was there held that
the representation was sufficient to bring the power of the court
into action, that it was enough that there was something of record
which showed the subject before the court, and that the granting of
the license was an adjudication upon all the facts necessary to
give jurisdiction. That decision disposes of the particular
objections stated to the sale in this case.
The record of the subsequent license to the administrator to
sell the same property, and its second purchase by the defendant,
was properly excluded. It did not show or tend to show fraud in the
first sale or any collusion between the administrator and the
purchaser. The proceeding may have originated in a desire to remove
doubts suggested as to the regularity of the original sale, but
whether this was so or not, the first sale not being set aside, its
validity could not be impaired by the second.
There is no force in the objection that the proceeds of
Page 70 U. S. 407
sales made by the administrator of lands of the intestate
amounted to over ten thousand dollars instead of eight thousand,
the amount of his alleged debts remaining unpaid. The title of the
purchaser could not be affected by the excess. That was a matter
solely for the consideration of the court on the return of the
sales by the administrator.
Judgment affirmed.
[
Footnote 1]
Barber v. Winslow, 12 Wendell 102;
Porter v.
Merchants' Bank, 28 N.Y. 641.
[
Footnote 2]
Van Steenbergh v. Bigelow, 3 Wendell 42;
Jackson v.
Robinson, 4
id. 437;
Jackson v. Crawfords,
12
id. 534;
Atkins v. Kinnan, 20
id.
242;
Porter v. Purdy, 29 N.Y. 106;
Betts v.
Bagley, 12 Pickering 572.
[
Footnote 3]
43 U. S. 2 How.
319;
See also Florentine v.
Barton, 2 Wall. 210.
