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COMSTOCK V. CRAWFORD, 70 U. S. 396 (1865)

U.S. Supreme Court

Comstock v. Crawford, 70 U.S. 3 Wall. 396 396 (1865)

Comstock v. Crawford

70 U.S. (3 Wall.) 396


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,"


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

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