Pratt v. Bates

• Decision Date: 17 May 1894
• Citation: 161 Mass. 315,37 N.E. 439
• Parties: PRATT v. BATES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 315

37 N.E. 439

PRATT v. BATES.

Supreme Judicial Court of Massachusetts, Norfolk.

May 17, 1894

The agreed facts, in addition to those stated in the opinion, were as follows: Sarah B. Mayo, deceased, at the time of her decease, was seised and possessed of the land described in plaintiff's bill, and had a good title thereto. Her last will, which was duly proved and allowed contained the following clauses: "First. I give, devise and bequeath to my said husband, William Mayo, the use and improvement during his life of one-half of all the real estate of which I may died seised or possessed of, or to which I have any title. The use of the other during his life. Second. I give, devise, and bequeath to my nephew, George E Fisher, after the death of my said husband, the use and improvement of all my said real estate during his life, and the same, at his decease, in equal shares to his children should he have any, their heirs and assigns. But should said George E. Fisher die without issue, then and in that case said real estate I give and bequeath to the use and improvement of to my sister, Mary C. Wood, and her three daughters, in equal shares, viz. Ellen Gray, Elizabeth, and Addie Eliza, during their several lives, and at their decease to my said sister Wood's son, A. Bradford Litchfield, his heirs and assigns forever." At the date of the petition hereinafter mentioned, said Sarah B. Mayo and her husband, William, were both deceased, leaving no children (although there is no probate record showing his decease), but leaving living said nephew, George E. Fisher, who had no children, and was unmarried, her sister Mary C. Wood, a widow, and her (said Mary's) daughters, Ellen Gray Wood, Elizabeth Brown, and Addie Eliza Craven, and said A. Bradford Litchfield. By attorney, said George E. Fisher petitioned the probate court for said county, under sections 19 and 20 of chapter 120 of the Public Statutes, asking to have said plaintiff appointed trustee for the sale of the land named in said bill. The appointment of John B. Newhall to act as guardian ad litem and next friend, to represent the possible issue not in being of George E. Fisher, was not in fact made until some time after the probate decree was entered, and there was no other appointment of guardian or next friend in the case than the appointment of said Newhall guardian ad litem for minors. Said Pratt gave bond, and notice of the time and place of sale according to the order of the court, and offered said land by public auction in accordance with said notice. The sum of one thousand dollars was bid therefor by the defendant, through his duly authorized agent, A.H. Tower, and that was the highest bid made therefor at said auction. sAId tower, acting as agent of said defendant, signed the agreement of purchase. The deed was duly and seasonably tendered by the plaintiff to the defendant, and payment of the purchase price demanded. There was no other land in Cohasset belonging to said Sarah B. Mayo, or subject to contingent remainders under said will.

COUNSEL

Simmons & Pratt, for plaintiff.

Francis V. Balch and Felix Rackemann, for defendant.

OPINION

MORTON J.

This case was heard in the superior court on agreed facts, and comes here by appeal from the decree dismissing the bill. The facts as agreed include the proceedings in the probate court, by which a trustee was appointed, and was authorized to make the sale. They also state that the appointment of Mr. Newhall as guardian ad litem and next friend, and to represent the possible issue of George E. Fisher, was not made till after the decree appointing the trustee and authorizing the sale. It was agreed at the argument in this court, if competent, that the guardian did not take the oath required of him till after the sale. We think that the effect of the agreed facts is to waive the objection that the regularity of the proceedings in the probate court cannot be impeached collaterally, and to submit, independently of that consideration, the question whether the defendant should or should not be compelled to complete the purchase, and to take the deed which has been tendered to him. Wheelock v. Henshaw, 19 Pick. 341; Com. v. Greene, 13 Allen, 251.

The first objection urged by the defendant is that the petition for the appointment of a trustee and the sale of the land was not signed by the petitioner, but by his attorney. We think that this objection is fully met by the case of ...