
    Solomon Holmes vs. Madison Beal.
    It is not essential to the validity of an executor’s sale of his testator’s real estate for the payment of debts and legacies, under a license from the probate court that he first obtain the appointment of guardians to all minors who are interested in the estate.
    One who has been in possession of real estate, under an executor’s sale, for more than five years, the period of limitation established by Rev. Sts. c. 71, § 37, is not obliged, in an action to recover such real estate, to establish the validity of the executor’s sale, before he can avail himself of the statutory bar.
    This was a writ of entry to recover a parcel of real estate, situated at the corner of Centre and Southac streets, in Boston. The writ was dated July 8, 1850. The tenant pleaded the general issue, with a suggestion of improvements made by him more than six years prior to the date of the writ, and also relied on the statute of limitations.
    The action was tried in this court before Bigelow, J., and reported by him for the consideration of the whole court.
    To prove his case the demandant offered the following documentary evidence, namely: —
    1. A deed bearing date April 30, 1829, from John Low and others to George B. Holmes, the brother of the demandant, conveying the demanded premises.
    2. The will of George B. Holmes, bearing date September 2, 1829, and duly proved and allowed, September 14, 1829, whereby the demandant and his brothers and sisters were made residuary devisees of the estate of the testator, of which the demanded premises formed a part. George Putnam and James Burr were appointed executors of the will.
    The demandant then offered evidence to show that George B. Holmes, the testator, died seised of the demanded premises in 1829 ; that Solomon Holmes, the demandant, Elizabeth Holmes, Rosanna Holmes, Israel Holmes, Samuel Holmes, and William Holmes, were the brothers and sisters of the testator at the time of his death; that all of them, except Elizabeth, were minors at the time of the testator’s death; that the demandant was then ten or eleven years of age ; that Samuel and William were younger than the demandant; that their father died before the death of the testator; that the demandant and the other children, who were minors, had no guardians legally appointed at any time; that two of his brothers, named as devisees, namely, Samuel and William, had died before suit brought. Samuel died fourteen and William five years before suit brought.
    It further appeared that no person was in possession of the demanded premises after the death of the testator, until the sale thereof by the executors of the will, as hereinafter stated
    The tenant then offered in defence the following doeumen tary evidence, namely: —
    1. Letters of executorship, dated September 14, 1829, to George Putnam and James Burr, as executors of the will of George B. Holmes, from the probate court for Suffolk county.
    2. A list of debts due from the estate of Holmes, amounting to ¡§534.88, presented to the probate court April 26,1830, subscribed, and sworn to by the executors.
    3. A petition, presented May 10, 1830, to the judge of probate, by the executors, for leave to sell real estate sufficient to pay debts, &c., with the order thereon.
    4. A letter of license to the executors to sell so much real estate as will raise the sum of $416.63, and $60 for incidental charges, bearing date June 14, 1830, the executors to give notice of time and place of sale by posting, or publication, three weeks successively, in the Daily Commercial Gazette, published in Boston, first taking the oath by law required, &c., but requiring no bonds.
    5. A deed from the executors to Alexander Townsend, dated July 10, 1830, duly acknowledged and recorded, conveying the demanded premises, reciting that they were sold at public auction, and covenanting that the executors were duly qualified, and had taken on themselves the trust, and had full authority to execute and pass the deed; that Holmes’s estate was solvent; and that the premises were free from all incum-brances from Holmes, the executors, or either of them.
    6. A deed from Alexander Townsend to Madison Beal, dated June 29,1831, duly acknowledged and recorded, conveying the demanded premises.
    Two objections to the validity of the sale by the executors to Townsend were relied upon by the demandant. 1. That some of the residuary devisees under the will of George B. Holmes, were minors at the time of the sale, to whom no guardian was' appointed. 2. That the proper oath was not taken, nor the proper notice of the sale given by the executors. But the evidence on these points became immaterial to the decision of the case.
    It was admitted that the demandant had resided in this commonwealth for five years after attaining his majority, and after his title, if any, to the premises had accrued; and that he was then about thirty-three years of age.
    On the foregoing facts, the judge instructed the jury to return a verdict for the tenant.
    H the court shall be of opinion that any of the foregoing evidence was wrongly admitted, and that, excluding such evidence, the demandant is not barred by the statute of limitations from claiming title to any portion of the premises, but has a legal title to any part thereof, the verdict is to be set aside and a new trial granted, or such other order is to be passed by the court as they shall think proper; otherwise judgment is to be rendered for the tenant on the verdict.
    
      L. Gale, for the demandant.
    
      W. Minot, Jr., for the tenant.
   Dewey, J.

The several parties all claim title through George B Holmes, who, it is conceded, died lawfully seised of the premises.

The demandant is one of the residuary devisees under the will of said George B. Holmes, and, as such, claims a portion of the estate, and the residue as heir of two of his co-devisees, who have deceased.

The tenant claims under a title derived through a sale by the executors of Holmes, under a license from the probate court to sell real estate to pay debt's and legacies. The sale and conveyance by the executors was to one Alexander Townsend, in the year 1830, who conveyed the same to the defendant. The question between the parties is as to the validity of the title through the executors. The deed, it is admitted, is proper in form and passes the title, if the executors had the authority to make the sale, and complied with the requisites of the statute regulating such sales. The demandant alleges that no legal authority to make the salé was conferred on the executors, by reason of the fact that, among the residuary devisees of the will, were certain minors, to whom no guardians were appointed.

This objection was not much pressed, and is not well founded. The practice in the probate court, in cases of applications of this nature by the executor, is to order notice in the manner prescribed by the statute, and it is not made the duty of the executor to obtain the appointment of guardians to all minors who may be interested in the estate, before he can obtain a license to sell the same for the payment of debts and legacies.

The proceedings in the probate court in such cases are not like those required in ordinary suits at law against a minor himself, where the plaintiff must, at his peril, see that the-party has a guardian ad litem, or other proper legal representative.

The principal objection to the validity of the executors’ sale is of a different character, namely, that the proper oath was not taken, nor proper notice of sale given by the executors.

To this the tenant sets up, in answer, that these grounds are not open to the demandant, the case falling within the provisions of Rev. Sts. c. 71, § 37, limiting the commencement of actions for the recovery of real estate sold by an executor or administrator, under a license of the court of probate, to five years next after the sale.

It was contended by the demandant, that this limitation of suit to five years, applies only to estates “ sold ” by an administrator, and, therefore, necessarily requires the tenant to establish a valid sale, before he can avail himself of this statute. But this construction would render the provision in § 37 wholly nugatory. In other cases, and in all cases, no more could be required than to establish a valid sale and conveyance by the executor, by those who would defeat the estate of an heir or devisee of the same. If an action were instituted within the five years, the sale must be duly established, and,-upon the demandant’s view of the statute, if the party instituted his action after five years, no less a burden rests upon those claiming under an executor’s sale.

This provision of the statute was intended to quiet titles, and is highly proper and reasonable for the protection of those holding under this species of title.

We have no doubt but that the case falls within it, and the tenant may avail himself of the limitation of five years, as a bar to the objections proposed to be taken to the sale, the case further showing that such period of five years had elapsed after the removal of all disabilities, and the parties having shown residence in the commonwealth as required by the statute.

The defence being well maintained upon this ground, no occasion exists for considering particularly the other question, argued much at length, that of the competency of one executor as a witness in the case, and how far his conveyance with warranty to Townsend would show him incompetent. Upon this point we express no opinion. Upon the other ground, as already stated, the defence is well maintained.

Judgment for the tenant.  