Bompart's Adm'r v. Lucas

• Decision Date: 31 October 1855
• Citation: 21 Mo. 598
• Parties: BOMPART'S ADMINISTRATOR, Appellant, v. LUCAS & HUNT, Respondents.
• Court: Missouri Supreme Court

21 Mo. 598

BOMPART'S ADMINISTRATOR, Appellant,

v.LUCAS & HUNT, Respondents.

Supreme Court of Missouri.

October Term, 1855.

1. The probate courts have no power to authorize administrators to sell the real estate of their intestates, except in those cases provided for by statute: Held, therefore, that a deed, made by way of compromise of a claim in favor of the representatives of an intestate, and not for the purpose of raising money for the payment of the debts, &c., &c., though made by the administrator of such estate, under an order of the probate court, and purporting to pass all the interest of the intestate's estate, will not pass the interest of minor heirs of such intestate.

2. A. and B., by way of compromising a claim of certain heirs of C., deceased, executed their note for $2,000, to one D., and delivered the same to E., with instructions to hold the same “until P., administrator of (the said) C., deceased, executes a quit claim deed of relinquishment to the interest of the estate of said deceased in and to two tracts of land,” &c., to the said A. and B.: held, that the note cannot be legally demanded of the said E., so as to become the foundation of an action, until a deed is made passing all the interest of the estate of C. and comprehending the interest of minor heirs of said C. The condition is not satisfied by a deed, made by the administrator of C. under an order of the probate court, and purporting to convey all the interest of C.'s estate, it not appearing that the deed was made for the purpose of raising money for the payment of the debts of the intestate, &c., or that the probate court in any other way had the power to authorize the making of such a deed.

Appeal from St. Louis Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

C. B. Lord and B. A. Hill, for appellant.

1. The note in question having been once delivered, a suit can be maintained on it, notwithstanding a subsequent voluntary delivery of the note to Patterson to be held until the quit claim deed mentioned in said receipt of Patterson was executed. The delivery was absolute. If one make a deed and deliver it to the party to whom it is made as an escrow upon certain conditions, the delivery is absolute and the deed shall take effect as his deed. ( Fairbank v. Metcalf, 8 Mass. 238, per Sedgwick, J.; Wheelright v. Wheelright, 2 Mass. 447.) The note being once delivered, it became an absolute promise to pay money. The rights of the parties, fixed by the delivery of the note, were not divested by the subsequent placing of the note in the hands of the defendants or their agent. It was a contract fully executed and binding upon the makers. (4 Com. Dig. Fait, A. 3. Souverlye v. Arden, 1 Johns. Chy. R. 240. Arnold v. Patrick, 6 Paige, 310. Worrall v. Munn, 1 Selden, 229. 10 Wend. 311. Goss v. Whitney, 24 Verm. 187. Den. d. v. Partee, 2 Dev. & Bat. 530.) 2. The words in the receipt do not make a condition. The intent is uncertain. (1 Ral. 411. Poph. 99. Cro. Eliz. 414. Pol. 76. 3 Com. Dig. 88.) It is surely not a condition that the heirs should convey. The administrator, as such, had no power to convey the interest of the heirs. The defendants claim the benefit of the condition to avoid their solemn promise to pay money, and as to them it will be construed strictly. It will, therefore, be no answer to say that, because the estate did not descend to the administrator, the words, “of the interest of the estate of said deceased” mean the interest of Francis Bompart's heirs. 3. If there was a condition, it was literally and strictly complied with. The deed of March 2d, 1852, was a performance of the condition. 4. The court below erred in ruling out the testimony offered to show the pecuniary condition of Emilie Bompart, in connection with the will of her husband. She was to enjoy the property for life, and if her necessities required, she was to alien the same; and if her necessities at the time of the conveyance of April 3d, 1846, required her to dispose of the property, then her deed conveyed all the interest which her husband had in the land mentioned in the deed.

Glover & Richardson, for respondents. The main question to be considered is the ascertainment of the condition on which the note was made to take effect. 1. By the agreement of the parties the note was to be held by Patterson as an escrow, until a deed was executed and delivered to the defendants, which should operate to pass the interest of the minor heirs of Francis Bompart, and the deed which was tendered being ineffectual for that purpose or any other, the note never took effect. F. Bompart's interest in the land did not descend to his administrator, and he had no interest in it except for the payment of debts under the circumstances prescribed by law. His heirs were his representatives, and the words, “the interest of the estate” were equivalent to saying, the interest of the heirs. It is to be presumed that the defendants intended to contract for something. The mere deed of the administrator was a nullity. The defendants may have supposed that the administrator could procure an order for the sale of the property for the payment of debts, or that some proceedings would be instituted by which the interest of the heirs could be sold for their maintenance. 2. Proof of the pecuniary condition of Emilie Bompart, widow of Francis Bompart, was properly rejected. She only purports in the deed to convey her interest as one of the heirs of Henry Delaurier, and not any interest which she acquired by the will of F. Bompart. The will gave her a life estate, and also a power to convey the fee in a certain contingency. She had then an interest and a power, and the deed being executed without particular reference to the power, it will be applied to the interest. (4 Kent, 334-5. Blagg v. Miles, 1 Sto. 427. 3 John. Ch. 551. Cox v. Chamberlain, 4 Ves. 631.) The execution of the deed of Mrs. Bompart and others, dated April 2d, 1846, was contemporaneous with the execution of the note sued on, and the agreement touching it, and the parties assumed that the interest of the estate of Francis Bompart, deceased, had not been conveyed by said deed.RYLAND, Judge, delivered the opinion of the court.

This is a petition upon a promissory note, twice assigned; the plaintiff asks payment for the amount of the note, and alleges it to be in the possession of the defendants' agent, H. L. Patterson. In an amended petition, there is alleged the proceedings in the Probate Court, in relation to a compromise between the defendants and Charles Roderman, to whom the note was given; and that a deed was made accordingly by which the land described therein was conveyed to the defendants, James H. Lucas and Ann L. Hunt.

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