Giles v. Kenney

De Courcy, J.

It appears from the memorandum of the single justice that the respondent’s intestate, Peter F. Duffy, died at Providence, Rhode Island, on June 2, 1910, survived by a widow and two adult daughters, and leaving as property a piece *263 of unincumbered real estate in Boston. The daughters transferred their interest in the property to the widow, and she placed a mortgage on the property on November 1, 1911, which mortgage was assigned to the petitioner July 10, 1913.

The respondent was here appointed administrator of the estate of Peter F. Duffy on July 24,1913, upon the petition of the widow, assented to by the daughters; and a week later his petition to sell the real estate for purposes of distribution was allowed by the Probate Court. The present petition for the revocation of the license to sell was denied by that court, and the appeal therefrom to this court was dismissed by the single justice on the ground that the petitioner Giles was “not a party interested and therefore had no right to be heard, or of appeal.”

The contention of the petitioner is that he was entitled to notice of the petition for a license to sell the real estate belonging to the estate of the deceased, on the ground that he was one of the “parties interested” referred to in R. L. c. 146, § 18, as amended by St. 1907, c. 236. Although the court has not been called upon heretofore to determine who are included in the term “parties interested” as used in § 18, it expressly appears in the sections which deal with petitions for license to sell to pay debts and legacies, that the parties entitled to notice are those interested in the estate of the deceased. See R. L. c. 146, §§ 10, 12. It was held in Harrington v. Harrington, 13 Gray, 513 , that the wife of a devisee was not a “person interested” under Rev. Sts. c. 71, § 8, and hence not entitled to notice. In Yeomans v. Brown, 8 Met. 51 , it was held that a tenant in possession of the premises haying a title thereto by disseisin, was not interested in the estate of the deceased within the meaning of the same statute. As was said in that case at page 57, “It cannot be supposed that the Legislature intended to authorize a stranger to the testator’s title to interpose objections to the settlement and disposition of his estate.” The right of the administrator to sell the real estate on license cannot be defeated by the death, conveyance or disseisin of the heir or devisee. See Drinkwater v. Drinkwater, 4 Mass. 354, 359 ; Tyndale v. Stanwood, 182 Mass. 534 .

It seems to us that there is no sound basis for.giving to the term “parties interested,” when used with reference to a sale for *264 distribution, under § 18, a meaning different from that given to it in connection with a sale for the payment of debts under § 10. As stated by Braley, J., in Security Bank of New York v. Callahan, 220 Mass. 84 ,- “The court of probate in a decree of distribution deals only with heirs and legatees, without regard to their assignments or pledges,” citing Lenz v. Prescott, 144 Mass. 505, 515 ; Coram v. Davis, 209 Mass. 229,247 . The practical considerations are in favor of this rule. The Probate Court records disclose who are the heirs and distributees. It would be impracticable to compel the administrator at his peril to ascertain, in the registry of deeds and bankruptcy court up to the moment of granting the license to sell, all outstanding conveyances, liens, attachments and incumbrances affecting the interest of heirs or devisees in the property; and such a requirement would invalidate decrees granted where notice was not given to all such persons, and would seriously affect titles to real estate heretofore acquired under the established practice.

In Smith v. Bradstreet, 16 Pick. 264 , relied on by the petitioner, it was held that an attaching creditor of the interests of one of the heirs at law of the. deceased was entitled to appeal from a decree allowing the will. But, as was pointed out in Farrar v. Parker, 3 Allen, 556 , the right of appeal in that case was given by the statute broadly to any “person” aggrieved. See St. 1817, c. 190, § 7. The statute now in question provides that license to sell may be granted with the consent merely of all “parties” interested.

The petitioner is not left without ample relief. He has a remedy against the proceeds of the sale, which must be held for two years from the time of the filing of the administrator’s bond.

His rights are in no way concluded by the decree of the Probate Court, which, as to him, was res inter alios. Lewis v. Bolitho, 6 Gray, 137 .

The validity of the sale is not before us.

Decree affirmed.