Opinion
Decided December, 1888.
The question whether, on petition of an administrator, the probate court should grant license for the sale of the real estate of the intestate for the payment of debts is determinable on the administrator's petition in the probate court, and not on a bill in equity.
BILL IN EQUITY, for the foreclosure of a mortgage.
J. L. Spring, for the plaintiffs.
W. H. Cotton, for Wood.
The plaintiffs' mortgage was made in 1881, by the defendant Thomas P. Waterman. The defendant Wood has no title. He is a creditor of the mortgagor's father, Silas Waterman, a former owner of the land, who died in 1878, and of whose estate no administrator has been appointed. If an administrator should be appointed, and if he should apply to the judge of probate for license to sell this land for the payment of Wood's debt (G. L., c. 201), the question could be raised whether license should be granted. The statutory proceeding in the probate court is the proper action for the trial of that question. Joslin v. Wheeler, 62 N.H. 169; Hatch v. Kelly, 63 N.H. 29.
Decree for the plaintiffs.
BINGHAM, J., did not sit: the others concurred.