Jennison v. Hapgood

delivered the opinion of the Court. Several parties have appealed from the decree of the judge of probate ordering distribution to be made of- the estate of John Grout deceased, and several distinct questions are raised on their respective claims.

At the hearing before the judge of probate, John Jennison, the administrator on the estate of John Grout, claimed to be allowed the amount of a bill of costs recovered against him and the heirs of John Grout, in a suit in equity in which they, the administrator, and heirs, were plaintiffs, and Hutchins Hapgood was defendant. This claim was disallowed by the judge of proba.te, and his decision on this point is manifestly well *350founded. The administrator has never paid any part of this bill of costs ; it was paid by one Saunderson ; so that if there were any claim which ought to be allowed, it would only be to the extent of the administrator’s liability to contribution. Mere liability, however, would not authorize an allowance, unless it might be presumed that the liability would be enforced ; as to which we give no opinion, because we think that the administrator is, not liable to contribution. Saunderson paid the money voluntarily, not at the request of the administrator, but with the understanding that he was not to be held responsible. Saunderson was informed by 'Mr. Bigelow before he paid the costs, that it would not do to have the execution go out against the administrator. The suit was commenced for the benefit of the heirs, and the costs were paid on their account undoubtedly ; whether at their request or not, does not appear; nor is it material, in considering this case, to ascertain that fact.

As to the claim of the heirs, we are of opinion that that also ought.not to be allowed. John Grout’s estate being insolvent, the claim of his creditors is paramount to that of his heirs. And there is no distinction between the principal sum arising from the sale of the farm by the executor of the will of Jonathan Grout, and the interest which has accrued thereon. The whole has been paid together to the administrator of John Grout’s estate, and he holds it in trust for the .creditors.

The remaining claim in behalf of the widow stands on a different footing, and ought to be allowed.

She had a right of dower in the equity of redemption, and when the mortgage was paid off, her right was thereby enlarged. This estate was sold by the administrator of Jonathan Grout’s estate, and was purchased in for him ; and it has been decided in another case, that this sale was not merely void, but voidable only, and that those interested in the estate might elect to avoid the sale, or to confirm it, and to look to the proceeds of sale as a substitute. In pursuance of this decision the widow elected to confirm the sale so far as she was interested, and she is bound by that election and is estopped to claim her dower in the land. It has been contended that the mortgage has been foreclosed by the entry of Mrs. Hale the mortgagee *351and by her peaceable possession, and that of Hutchins Hap-good, for more than three years. This has been virtually decided to the contrary heretofore, on a full consideration of all the facts having any bearing on the question. The Court could not decide that the parties interested in this estate might elect to avoid the sale of the equity by Hapgood, if he had foreclosed the mortgage, and thereby obtained a valid title as assignee of the mortgage. This was decided in the case of Houghton v. Hapgood, and it is no longer an open question, and if it were, it is very clear that Hapgood, being as executor of the will of Jonathan Grout bound to redeem the mortgage, could not foreclose it against the devisees and persons interested in the estate under his will. And besides, in »the case stated it is expressly agreed that Hapgood redeemed the mortgage.

The decree of the judge of probate therefore must be reversed and corrected so far as to admit the claim of Prudence Saunderson, the amount of which is to be computed by the tables and -paid over to her, and the residue to the creditors of John Grout according to the original decree.

At October term 1834, the question of the widow’s right of dower came before the Court again, upon a suggestion that she had not made an election to take the proceeds of the real estate, as above stated ; and Brooks insisted that Hapgood had no assets to redeem, and that as the widow had not redeemed, she was not entitled to dower. But Shaw C. J. said that this argument had the same force against the creditors of John Grout as against the widow, for neither did they redeem ; that it was applicable to a former stage of the proceedings ; that the question now was only as to the distribution of a sum of money paid to the administrator of John Grout upon the ground that the executor of Jonathan had redeemed the mortgage. And in regard to the election of the widow, the Court thought that there was no error in the statement of facts at the former argument, but that this was immaterial, for she might now make the election ; and the decision made in October, 1833, was confirmed.