Coil v. Irwin S. Pitman's Adm'r

• Decision Date: 31 March 1870
• Citation: 46 Mo. 51
• Parties: JACOB COIL, Plaintiff in Error, v. IRWIN S. PITMAN'S ADMINISTRATOR, Defendant in Error.
• Court: Missouri Supreme Court

46 Mo. 51

JACOB COIL, Plaintiff in Error,

v.IRWIN S. PITMAN'S ADMINISTRATOR, Defendant in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to Sixth District Court.

E. A. Lewis, for plaintiff in error.

I. The County Court had jurisdiction of the subject-matter of the petition. (Jones' Appeal, 3 Grant's Cas. 169; Dubois v. Sands, 43 Barb. 412; Seaman v. Duryea, 10 Barb. 523; Cleveland v. White, 31 Barb. 546.)

II. In the case now before the court, the defendant in error was not the person named or appointed by the testator to discharge the trust. He was not even the executor named in the will. He was appointed to discharge the trust solely by “operation of law:” first, in his appointment and qualification as administrator cum testamento annexo, with which the testator had nothing to do; and, secondly, by direct operation of the statute (1 Wagn. Stat. 93, § 1). An examination of the Pennsylvania statutes will show that in that State the authority of the Orphans' Court over the real estate of decedents is as specifically defined as in this. Yet it is there held that the authority to sell being first given by the testator, the duty of the administrator to carry out the authority is imposed upon him as a part of his office and by operation of law. The probate tribunal confers no authority upon him. It simply directs and controls him in the discharge of a duty, as it may well do, touching every duty of his office. (Dunlop, 541.)Henderson & Dyer, for defendant in error.

I. The sale of lands by an executor under a will is a specific power conferred by the will, and not derived from the administration law.

II. Where lands are sold for the payment of debts (1 Wagn. Stat. 94, §§ 8, 21, 23, 24, 25), sundry specific requirements of the statute must be carried out. Not so in the case of a sale under a will. In this case there need be no appraisement, no advertisement, no public auction during a term of court, no requirement as to the amount for which it shall sell, no denial of the right of executor to purchase except for a given sum, and no requirement that the executor shall report his proceedings to the Probate Court.

III. The administrator was a trustee for the heirs of Pitman, and alone responsible in a court of chancery for his conduct so far as this plaintiff is concerned.

IV. The statute enumerates the cases in which the court will order an administrator to convey real estate. (1 Wagn. Stat. 98, §§ 36, 37.) Its jurisdiction extends no further in this direction. ( Id. 99, § 38 et seq.)

WAGNER, Judge, delivered the opinion of the court.

Pitman died in Warren county, Missouri, in 1862, leaving a last will, which was admitted to probate in that county. The will provided that, after the death of the testator's widow, the executor should sell the real estate and divide the proceeds among his children. The executor named in the will neglected to qualify, and Parker, the public administrator, took charge of the estate with the will annexed.

The widow having died in 1865, Parker advertised and sold the land; and the plaintiff in error, Coil, became the purchaser and made part payment, giving his note for the remainder. On the maturity of the note for the deferred payment, he alleges he tendered to Parker the amount due thereon, and that the latter refused to receive the money or to execute a deed for the land.

The plaintiff in error then filed a petition and made a motion in the County Court, asking for an order on Parker to compel him to execute a deed.

The motion being overruled by the County Court, plaintiff in error appealed the case to the Circuit Court of Warren county, whence it was removed by change of venue to the St. Charles County Circuit Court, in which court a motion to dismiss the proceeding for want of jurisdiction was made and sustained. The case was then appealed to the District Court, where the judgment of the Circuit Court was sustained.

The only question presented for consideration is whether the County Court of Warren county, as a court of probate, had jurisdiction over this proceeding. The County Court, exercising probate functions, although a branch of the State judiciary, has only such power and jurisdiction as is conferred on it by the statute.

That the administrator with the will annexed was the proper person to make the sale and execute the trust is undoubted; for the statute explicitly declares that the sale and conveyance of the real estate under a will shall be made by the acting executor or administrator with the will annexed, if no other person be appointed by the will for that purpose, or if such person fail or refuse to perform the trust. (Wagn. Stat. 93, § 1.)

The section investing the County Courts with jurisdiction provides that the several County Courts shall, when not otherwise provided by law, have exclusive, original jurisdiction in all cases relative to the probate of last wills and testaments, the granting letters testamentary and of administration, and repealing the same, appointing and displacing the guardians of orphans, minors, and persons of unsound mind, lunatics; in binding out apprentices, and in the settlement and allowance of accounts of executors, administrators, and guardians; to hear and determine all disputes and controversies whatever respecting wills, the right of executorship, administration, and guardianship, or respecting the duties or accounts of executors, administrators, or guardians, and all controversies and disputes between masters and their apprentices; to hear and determine all suits and other proceedings instituted against executors or administrators, upon...