The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1896-04-08
Law Court Decisions.
KNOX COUNTY.


Frances e. Hurley, Hplt. from decree
OF Judge of Probate.
Rescript by Peters, G. Jan admins
traitor having made distribution OF tne
money in his hands coming from con
version of all the personal assets OF one
estate except one hundred shares OF panK
stock. appraised at the value OF Sl2o per
share. he petitioned the probate court
representing that he had in his hands,
property to the amount of twelve thous-
and dollars" according to its appraisal
in the inventory, and asked that dis,
tribution Of 'such balance" be ordered
among the heirs.
After due proceedings thereon the The
court deereed THAT the sum OF SlS, U0O
in the stock Of the American National
bank, at appraised value, now IN the
hanassOf administrator
be distri buted among the heiss OF said
deceased, whose names and distrlDutlVe
shares are as follows.' After the sigma
ture of the judge to this decree, follows
the names of the distri butees with the
amount of the share to each, and all
amounting to $l2, Coo
There was no appeal from this decree
and the administrator accordingly ten
dered the appellant, one of the heirs, an
assignment Of her share thereof which
she refused to receive, but which she can
have at any time she may consent to 40
cept.
In the next settlement of the admins
traitors accounts he was allowed for the
twenty -four hundred dollars thus ten
dered to the appellant, and she appealed
from the decree allowing the same. OBJ
jecting that distribution in kind can
not be ordered unless the petitions prays
for distribution in kind.
Held, that such distribution in effect,
and by the strongest implication, was
called for by the petition. 1t speaks OF
property in the administrators hands,
and not of money. 1t desert hes 1t as a
balance" according to the appraisal.
There was no other property in his hands
of any kind OF amount. The reference to
the inventory perfectly identified the
property to lie divided, and the appellant
necessarily knew these facts or Is pre-.
sumed to have known them.
Also; that the judge could order dis
tribution under the permissive statute,
R. S., C. 65, sec. 20, without the aid OF
appraisers, which can be executed with
| mathematical certainty.
| There may be some irregularity in 9
portion of o decree being before, and a
portion being after the name OF the
| judge.
Held that this is not enough to render
decree void, there being no contradic
ton or Inconsistency between the severa.
clauses and such merely formal irregu
larity can be readily corrected by amend
ment, if necessary.
| The case discloses nothing upon which
the objection can avail any thing, where
in it is urged that the administrator was
| guilty of negligence for not disposing Of
the bank stock by sale at a time when il
was in better demandssin the market. Ap
peal dismissed. Decree below affirmed
with costs.
KENNEREC COUNTY.
Charles 7. Stackpole ct al. VS.. Albert
| L. Perkins.
Resoript by Peters G. WHILST mos
of the members Of the court have some
doubt whether the horse in question was
sound when sold to the plaintiffs by tht
defendant, still all of them are of opinion
that new trial better not be granted up
on the newly discovered evidence present
ed to US. We have no doubt that thu
principal witness, whose testimony is re
lied on in support of the motion in per
son Of integrity and intelligence, anG
still we do not regard his testimony a.
cogent enough to justify new trial O.
the action, in view of the great mass Of
testimony which was submitted to the
| jury by both parties az former trials
when the juries twice returned a verdict
| in favor of the defendant. The new evi
dence is met by counter evidence opposed
to it. and is only cumulative to other ties
timony on the same point. Then, too
the new evidence in some degree is mat
ter of opinion only on the part of. the wit
ness and that is whether what he saw
upon the horses hoof indicated the exis
tence of quarter orack or not. We do no
think it would be in the furtherance o
| Justice to reopen the cause for a thirt
trial. Interest reipublicae ut sit flni
| litium. Motion overruled.