By the Court
Berry, J.The decision of this case depends upon the validity of an administrator’s sale of real estate. It appears that the license to sell was granted on the 31st day of December, 1859. At that time, the statute (section 8, p. 418 Pub. Stat.) required the administrator to give a bond prior to sale in certain cases. By an act passed March 10, 1860, section 8 was repealed, and the following enacted *353as section 13, of Chap. 38 of Pub. Stat: “Every executor, or administrator, licensed to sell real estate, shall, before such sale, give bond to the Judge of Probate, with sufficient sureties, to be approved by said Judge, with conditions to sell the same, and account for the proceeds according to law.” Laws 1860, p. 18L The sale, in this case, took place on the 31st day of December, 1860, having been first advertised Nov. 30th, 1860. No bond, as required by the act of March 10th, was executed. To prove this fact, the Judge of Probate was called as a witness, and testified, that, after diligent search, he had been unable to find any such bond, or any mention or record of it among the records of the Probate Court. The administrator was also called, who testified, that, in the course of his administration, he executed no bond, except his official bond as administrator. To all this testimony the defendant below objected on the ground, “ that, in this collateral action, the presumption of law that the proceedings of the Probate Court were regular, and according to law, could not be contradicted or disproved, and that there could be no judicial inspection by this Court behind the record of the Probate Court, and that the inquiry was immaterial and irrelevant.” But the objections were rightly overruled, and the testimony properly admitted. The statute (Sec. 52, p. 24 Pub. Stat.) provides, that, in case the heirs, or persons claiming under a decedent, shall contest the validity of an administrator’s sale, such sale shall not be avoided, provided it shall appear, among other things, that the administrator “ gave a bond, which was approved by the Judge of Probate, in case a bond was required upon granting a license.” By necessary implication, it follows that a sale ma/y be avoided if the want of the required bond is made to appear, and, of course, it is implied that it may be made to appear by competent evidence. The testimony introduced for that purpose here was certainly competent. There could be no other, or more satisfactory, way to establish a negative- fact of that *354kind, than by calling the custodian of the records, and corroborating his testimony by that of the administrator himself. Nor do we think that this is a collateral action in any such sense as to render it improper to introduce evidence to impeach the sale. It is clearly such “an action for the recovery of any estate sold ” by an administrator, as by section 50, ■ page 423, Pub. Stat., the hem is authorized to bring, within five years after the sale, and in which he is permitted to assail it on the ground, among others, that the required bond was not given. Por the bringing of an appeal from an order or judgment of the Probate Court, he is limited to thirty days after the notice thereof. Nor is there any presumption in favor of the proceedings of a Probate Court, which renders evidence of this character, or upon this subject, incompetent or inadmissible. The very fact that, by the statute regulating this matter, a sale is allowed to be attacked for the want of the requisite bond, precludes the idea that there is any presumption in favor of the acts of Probate Courts, which would exclude any attempt to make the attack. To return: it appeared upon the trial below, and the referee who tried the cause finds that no bond, such as is required by the act of March 10, 1860, was executed. If this bond was required in the sense of the statute, the want of it was fatal. The statute settles this. Sub. 2, Sec. 52, p. 424, Pub. Stat. The word “required” is not used in the sense of “ ordered, or demanded, by the Judge of Probate,” because an inspection of the statute shows that section 8, which we have already spoken of as repealed, and which was contained in the same chapter as section 52, above referred to, peremptorily requires the execution of a bond before sale, whenever the administrator was authorized to sell more than was necessary for the payment of debts, and also allowed the Judge of Probate to require a bond further than his official bond, when he should deem it necessary. Ve take it that subdivision 2, of section 52, in speaking of the bond “ required,” had reference to any bond required by *355law, whether it was to be given with, or without, the express direction of the Probate Judge. There would seem to be no reason why the want of such bond should be fatal to the sale in the latter case, and not in the former. But it is insisted that the act of March 10, 1860, passed, as it was, after the license to sell was granted, did not apply to this sale ; that it was future in its operation, and applied only to cases where the license was granted after the 10th day of March. It is not easy to conceive of any reason why it should not apply as well where the license had been already issued, but no step taken towards a sale, as where the license itself was issued subsequent to the passage of the act. The same considerations of protection of the interest of heirs and infants would seem to have place in one case as in the other. The language, “ Every executor, or administrator, licensed to sell (that is to say, in that condition, holding a license now, or at any time,) etc., etc., shall give bond, etc.,” would seem to comprehend both cases. And reasoning from the analogies of our statute relating to p'robate proceedings, which require, or authorize, security for the protection of heirs and creditors, it would seem that the enactment of the section referred to, simultaneously with the repeal of the only provision of statute by which security in a case of this kind was authorized, would have a strong tendency to show that the former was intended as a substitute for the latter, and designed to take effect at the same moment when the other was abrogated. See Sibley v. Waffle, 16 N. Y. 182-3. We think that the bond provided for in the act of 1860, was necessary in this case, and that the failure to execute it was fatal to the validity'of the sale. As this view disposes of the case, it is unnecessary to allude to other points made upon the argument.
Judgment affirmed.