The opinion of the court, Mathews, J. absent, was delivered by
Portee, J.*473Tbe testator made two wills. One of them was admitted to probate, and its execution ordered. The executor, in pursuance of this order, proceeded to sell the effects of the estate, but the purchasers did not comply with the conditions on which the property was adjudicated to them; no re-sale, however, was ordered, and things stood in this situation, when a judgment of this tribunal set aside the will which had been admitted to probate, and ordered the execution of one which had previously been made by the testator.
The executor named in the will last mentioned refused to act, and a dative executor was appointed. His proceedings in relation to the property which had been adjudicated to certain persons and not paid for, has caused the litigation which has brought the present cause before this court.
Among the purchasers at the sale made by order of the Court of Probates, was One R. C. Hall. The sale took place on the 27th March, 1832. Proceedings were carried on as far as a writ of distringas, to make him carry his contract into effect, but without any useful result being attained. The sheriff returned that he could find no property on which the writ could operate.
The executor of the first will which was admitted to pro-, bate, endeavored to cause a resale of the property. This was opposed by the new dative executor in his then capacity of heir, and the court decided that the property could not be sold, as the executor had required.
Shortly after the dative executor received his appointment, he ratified and confirmed all the sales which had been made by the executor of the annulled will, and in this act, it is specially recited, that as the property which had been adjudged to Robert C. Hall, was, in reality purchased, for account of Daniel F. Walden, and that said Hall is since deceased, without having performed or fulfilled any of the obligations of said sale, or paid any part of the price; he therefore consents that Walden shall be considered as the original and bona fide proprietor, and regarded as the person to whom the property was adjudged.
The illegal possession by a third person of a sac-cession, does not preventtheCourt of Probates from taking the necessary steps to have Stoinistereea.dllly The plea 0f res judtcata^cannot partics° appeared pacityin the form-ersu1- the^attorneyrfor toacccomnJncos hfeapppintaent!f The dative ox-ecutor cannot wide™,! notEióe dtfposemofthene°f-by priTOtoeagree-mont.The attorney for the absent heirs next took a role on the dative executor, to show cause why the real estate left by the deceased, should not be sold again by the Register of Wills. To this rule, Walden was made a party.
Walden denied the jurisdiction of the Court of Probates and was dismissed. The executor has shown various causes why the rule should not be made absolute.
1. The dative executor cannot comply with the order demanded, because the property is in possession of a third person, not subject to the jurisdiction of the Probate Court.
2. The case was adjudged 25th August, 1832, and that judgment formed res judicata.
3. The attorney for the absent heirs cannot take such a step without proving there are such in existence.
4. The dative executor is the heir.
5. The property would not sell for near its value, as the buyer would acquire nothing but an expensive lawsuit with the party in possession, under the first sale.
On the first point, we are of opinion, that the circumstance of the property being in the hands of a third person, if it be . _ illegally in his possession, does not prevent the Court of Pro- ° bates from taking such steps as will enable the estate to be ° ¿[uly administered.
On the second point, we think that the judgment referred t°5 hoes n°t form the plea of res judicata, for the decision there was n0£ between the same parties. There, it was the former executor who contested the case with the present defendant, who did not appear m the same capacity he does now.
3. We think the attorney for the absent heirs could proPerty take such a rule. It is his duty to see that the estate is legally administered, and his right to act commences with the date of his appointment, and is not contingent and in abeyance, until it is discovered there are heirs in existence.
4. It does not appear to us the judge erred. Hall had A u ° hieh without complying with his contract, and could not have claimed the property. The act was never signed by him. Not being the owner of the property, it is not seen by us how he *475could transfer that property to a third person. The dative executor has no power to dispose of the effects of the estate by private agreement, or to confirm any sale which was not legally made. ■
Preston, for appellant. D. Seghers, for appellee.5. The price which the property may sell for, cannot influence our judgment on the law. It is proved, however, that the land has greatly increased in value, and may he presumed the sacrifice will not be so great as seems to be apprehended.
It is, therefore, ordered, adjudged, and decreed, that the judgment of the Probate Court be affirmed with costs,