
    * Anna Cutts and Others versus John Haskins
    The authority to grant administration upon the estate of a deceased intestate, who was, at his death, an inhabitant of the commonwealth, is vested exclusively in the judge of probate for the county where such deceased person dwelt at the time of his death; and the doings of any other judge of probate on such estate are void.
    This-was a real action, brought to recover an undivided moiety of the land described in the writ; the demandants claiming as cousins and heirs of one Silence Elliot, deceased, who, they allege, was seised of the same within fifty years before the bringing of the action.
    At the trial, which was had upon the general issue, before Parker, J., November term, 1811, in this county, the seisin of the said Silence was proved, and the relation of the demandants, as set forth ; so that, as heirs at law, they were entitled to recover, unless the defence relied upon was legal and sufficient.
    
      It appeared in evidence that, in 1771, John Elliot died seised of the demanded premises, leaving the said Silence, Sarah Elliot, and Joseph Elliot, his children and heirs, and that, in the division of his estate, the demanded premises were assigned to the said Silence and Sarah ; — that the said Silence and Sarah were born in Boston, but, after the death of their father, viz., in 1776, they went with their brother to the town of Natick, in the county of Middlesex, where they continued to live until their respective deaths, and that they died there ; — that the said Silence and Sarah were born deaf and dumb, and were considered by the judge of probate as non compos at the time of their father’s death, and ever afterwards ; and that the said Haskins was duly appointed their guardian in 1782 ;—that the said Sarah died in 1787, and the said Silence in 1790 ; — that in 1790 letters of administration upon the estates of the said Sarah and Silence were granted by the judge of probate for the county of Suffolk to said Haskins, who soon after settled his guardianship accounts, and a balance was found due to him from the said Sarah of 171?. 19s. le?. and from the said Silence of 125?. 3s. 4c?.; — that the appraised value of the real estate of the said Silence and Sarah severally was 167?. 10s. and it was finally sold at auction for 369?.; — that the said Haskins, administrator *as aforesaid in January, 1791, made application to the Court of Common Pleas for the county of Suffolk for leave to sell the whole of the real- estate of the said Sarah and Silence, for the payment , of the balances due to him from their respective estates, which was granted him; but it did not appear that any bond was ever given by him, to account for the proceeds of the sale of said estates, or either of them ; — that on the final settlement of the said Haskins’s accounts as administrator of the estate of said Silence, a balance was found against him of 42?. 17s. 4c?.; but that the estate of the said Sarah proved insufficient for the payment of her debts; — that the sale of said estate was made publicly on the 5th of March, 1791, John Haskins, Jun., the son of the tenant being the purchaser; and this latter, by his deed of bargain and sale dated the 17th day of the same March, reconveyed to his father that part of the real estate of the said Sarah and Silence, which is described in the demandant’s writ.
    The several documents from the probate office, and the deeds used at the trial, came up in the case for the consideration of the Court.
    There was no evidence of any unfairness in the sale, or any privacy in managing it; and the price obtained was a fair one, according to the value of the property at the time of sale.
    Objections were made to the jurisdiction of the Court of Probate for the county of Suffolk, in granting the letters of administration and the other proceedings relative to these estates, on the ground that, although the said Sarah and Silence were natives of, and had been inhabitants of, Boston, yet, at the time of their deaths, they were inhabitants of, and residents in, the said town of Natick, and had been so from 1776.
    The notifications of the administration, and also of the sale, were likewise objected to ; because it did not appear that they were published in any town adjoining to Natick, where the deceased last dwelt; the publication having * been made as if they had died in Boston, except that notice of the time and place of sale was published in the said town of Natick.
    
    It was also objected that the evidence from the probate office, and the certificate of the judge of probate, were not sufficient foundation for a license for the sale of the whole of the real estate of the deceased.
    All which objections were overruled by the judge, and a verdict taken for the tenant, reserving the law for the opinion of the whole Court.
    The cause was argued at the last March term in this county, by Prescott and Ward for the demandants, and by Dexter and Jackson for the tenant.
    
      For the demandants,
    
    it was contended, 1. That the original grant of the administration to Haskins by the judge of probate for Suffolk county, with all the subsequent proceedings, were void, being coram non judice; because the deceased intestates were, at the time of their decease, inhabitants of Naiick, and the power of granting administration upon their estates appertained to the judge of probate for the county of Middlesex. 
      
    
    
      2. That the Common Pleas exceeded their lawful powers in licensing the sale of the whole real estate; such license being only authorized upon petition and declaration filed and proved in court, that by a partial sale the residue of the estate will be greatly injured.  The petition, in this case, showed no such fact, and the license was unauthorized and void. The order was void also, as containing the license to sell the estates of the two deceased persons in one order, instead of a several license.and order for each estate.
    3. The license was also void, because no bond to observe the directions of law, &c., was either required by the court, or given by the administrator, previous to the sale; although the statute, expressly requires it; and the court had no authority to license the sale, but upon this condition.
    
      * 4. Granting that the court had jurisdiction, and that it was duly and legally exercised, yet the sale was void; because the administrator neglected to post up notifications in two towns next adjoining to Natick, where the deceased last dwelt; which is expressly made á prerequisite to the authority to sell. 
    
    
      For the tenant,
    
    it was insisted that, the statute in the case being merely directory, the granting of administration in Suffolk was not void, if it was erroneous. If any one interested in the'estate was dissatisfied, the remedy was by appeal. But the proceeding was not erroneous. These persons were, in fact, inhabitants of Boston, and were there settled at the time of their death, although actually resident in Natick. The statute of 1788, c. 66, $ 1, speaks of habitancy and residence as distinct, and as each giving authority to the Probate Court. And this being a question of law, which has been settled in the proper forum, the Court of Probate, it cannot now be inquired into.
    As to the second point made for the demandants, it was answered that, this being a question of title to real estate derived under proceedings in the Probate Court, the Court here will not apply the same strictness as in a court of common law. The Common Pleas, at the period of this transaction, were wont to license the sale of real estate for payment of the charges of administration as well as of sale. They might over-estimate these charges, and consider that the whole estate would not more than cover them. If they erred in that estimate, this can be no sufficient reason for making the whole proceeding void, and setting aside a conveyance of land, which has been so long acquiesced in.
    To the third point, it was insisted that the statute requires a bond to be given only when more land is to be sold than sufficient to pay debts, legacies, and charges; and as such sale was not contemplated in this case, no bond was by law required.
    *To the fourth objection, it was answered that the said advertisements were to be posted in two towns adjoining that where the deceased had her habitancy, which, in this case, was decided, by the competent jurisdiction, to be Boston. The objection is unfounded.
    
      
      
        Stat. 1783, c. 32, §.2.
    
    
      
      
        Stat. 1783, c. 46.
    
    
      
      
        Stat. 1783, c. 32, § 1
    
   By the Court.

The demandants, having established their title as heirs at law of the deceased, are entitled to judgment, unless the tenant has shown a good title in himself.

The title of the tenant is under a sale by him, as administrator of the deceased, by virtue of an order of the Court of Common Pleas for this county, founded upon a certificate of the judge of probate for the same county. Sundry exceptions have been taken by the demandants to the title thus set up by the tenant.

It was objected, first, that the intestates were, at the time of their decease, inhabitants of the county of Middlesex, and therefore that administration ought to have been taken out there; and it is our opinion that, where a deceased person was, at the time of his or her death, an inhabitant of this state, the power of granting administration appertains exclusively to the judge of probate of that county in which the deceased dwelt. The doings of any other judge of probate in the case are merely void. In this case, it is found that Sarah and Silence Elliot, many years before their decease, removed from Boston, and continued until their respective deaths to live in Natick, in the county of Middlesex. They there made, with their brother, one family. Natick was their permanent and fixed residence. This was very different from their having been placed at board there by a guardian, or from the case of a scholar residing from home for his education. The proceedings in the Probate Court of Suffolk must, therefore, be considered a nullity.

This objection being fatal to the title set up by the tenant, there is no necessity of giving an opinion upon the other objections made to it. The verdict is set aside, and a new trial granted, 
      
      
         [Holyoke vs. Haskins, 5 Pick. Rep. 20 ; and see President and Fellows of Harvard College vs. Gore, 5 Pick. — Was not the place of the residence of the deceased a matter to be determined by the Court of Probate ? And if that court found their residence to be in Boston, and no appeal was made from that decision, was not the decree final and conclusive as to that matter of fact ? And how could the question, as to the place of their residence, be, afterwards, properly raised, in order to show that the court had no jurisdiction ? The court had cognizance of this matter, on which its jurisdiction depended, and if by the record it did appear, that the facts were such as to give the Court jurisdiction, why should its proceedings, and all bond fide sales and transactions founded thereon, be set aside and annulled ? —Ed.]
     