Dilworth v. Rice

• Citation: 48 Mo. 124
• Parties: JOSEPH DILWORTH, Defendant in Error, v. ANAPIAS RICE, Plaintiff in Error.
• Decision Date: 31 March 1871
• Court: United States State Supreme Court of Missouri

48 Mo. 124

JOSEPH DILWORTH, Defendant in Error,

v.ANAPIAS RICE, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1871.

Error to St. Louis Circuit Court.

Krum & Decker, for plaintiff in error.

I. The certified transcript from the clerk's office of the Probate Court, purporting to be a will, upon which a certificate of probate was issued, was not conclusive evidence of the will, and the proof offered and excluded by the court repelled the only effect which the statute gives to such a transcript. The transcript was offered under section 27 of the statute of wills (Wagn. Stat. 1368, § 27). Under this section it is admitted only when the will has been “proved as aforesaid”--that is, when proved according to the express requirements of the preceding statutory provisions.

( a) It must be attested by two witnesses (§ 3).

( b) The testimony of all the witnesses shall be reduced to writing, signed and certified (§ 20).

( c) When the witnesses are prevented from attending, the commission is to issue (§§ 16, 17).

( d) When witnesses are dead, secondary proof is to be taken of handwriting; that also must be reduced to writing, signed and certified (§§ 18, 19). When thus proved, a certificate of probate is to issue, and may be read as evidence (§ 26), and not otherwise. It is a certificate of probate in common form, and evidence only when the statutory conditions are complied with. It is not a judgment, for it cannot be appealed from. It is not as much a judgment as the order of the County Court approving and confirming an administrator's sale, which, although made after notice published to the world, is void where any of the statutory prerequisites are omitted. (Valle v. Fleming, 19 Mo. 459; Farrar v. Dean, 24 Mo. 17; Beal v. Harmon, 38 Mo. 438; Strouse v. Drennan, 41 Mo. 293.) The reasoning of the court in these cases, as applicable to administrators' and guardians' sales after notice, and under a statute which declares that such approval by the court of sales shall convey the title of the intestate or ward, applies with at least equal force to certificates of probate issued ex parte, and which can only be issued upon the terms specified; and especially where the statute makes such transcript evidence only “when so proved according to the provisions of the statute,” and allows the transcript “to be repelled in like manner.” Such a certificate is not a judgment. A judgment is an adjudication, where parties have their day in court and right to appeal. The heir is wholly ignored in this proceeding. The statute does not contemplate his appearance, nor that he has notice or right of appeal. The court had no power to issue a certificate of probate until both witnesses or their testimony is produced. If it acts without having procured this, it acts without jurisdiction; and its act is not erroneous merely, but without any authority, wholly outside the statute, and of no validity. In Jourdan v. Meyer, 31 Mo., and Creasy v. Alverson, 43 Mo., the acts which authorized the certificate to be issued were performed. The witnesses were both produced and gave their evidence, which was certified; the condition upon which the court was to act was performed, and the court had acquired jurisdiction; and although its judgment was erroneous, it should have been impeached in the manner pointed out by law. In this case the witnesses are not produced; the clerk could not issue a certificate of rejection, nor could he issue a certificate of probate; nor could the court confirm what the clerk had no power to do. Where a judicial tribunal, although having a jurisdiction of the subject conferred, may exercise it only under a particular state of facts, those facts must appear affirmatively; and when so established and appearing, its judgment cannot be impeached collaterally; but if they do not appear affirmatively, the proceeding is coram non judice and void. (Staples v. Fairchilds, 3 Comst., N. Y., 41; Sander v. Rains, 10 Mo. 771.) The case of McNair v. Biddle, 8 Mo. 263, relied on by respondent, in nowise militates against the doctrine contended for. It was the judgment of a court of general jurisdiction, which had acquired jurisdiction by the appearance of the party who afterward sought collaterally to impeach the judgment. (Cutts v. Haskins, 9 Mass. 546.)

II. The land descends to the heir. A power of partition or of sale, not coupled with a devise of the land to the donee of the power, can be exercised only by the party to whom it is expressly given. (Hill on Trustees, 472.) The right of an executor to sell lands does not exist virtute officii, for by virtue of his office he has to deal only with personalty. The right of the executor to meddle with the land for partition or sale can only be derived under a special authority; whereas the executor by law has the right to the possession and disposal of personalty. The statute (Wagn. Stat. 93, § 1) does not purport to give or vest any mere power or discretionary right, vested in another, to an administrator. It does not purport to give him any more power than was vested in the executor by the will. According to the interpretation of the respondent this statute would read as follows: “Whatever acts the executor might have done or left undone in his discretion, in respect of land, may be done or not done by the administrator,” etc. Here a partition of the land is to be made by the executor, involving his judgment, and the judgment of no other person, which the testator had the right to invoke. That judgment is taken and transferred to the administrator where the executor fails to act--that is, the executor may refuse to exercise his judgment for the benefit of the devisees; then the administrator, against the will, exercises his own and sets aside the judgment of the executor. The administrator, under this construction, is put above the will and above the executor. Such was not the intention of the law-maker, nor can it be the true construction of the language. Under the statute the power vested in the administrator is limited to the sale and conveyance; hence it cannot under any possibility embrace a power of partition, particularly when the mode and manner of that partition is to be under the judgment of another. It does not contemplate a case in which the exercise of a discretion is involved.

R. S. Voorhis and John Decker, for plaintiff in error.

I. The whole tenor of the will is strikingly indicative of personal, individual trust reposed in the person nominated in the will as executor. There is no devise to the executor of any interest in the land. It is a naked power. A devise that the executors shall sell the land, or that land shall be sold by the executors, will give them simply an authority or power. (1 Sugd. Powers, 131-4; 2 Spence's Eq. Jur. 366; 1 Chance, 53, 54.) And before the statute of Henry VIII, if a power were given to two or more persons, the power could only be executed by all of the persons so named; it could not be executed even by the survivors or survivor unless under an express authority, for it is a personal trust in all. (2 Spence, 365; 1 Chance, 233, 250-1, 683-6.)

II. In the case at bar, if the sale is imperative, and as well the division into seven equal parts prior thereto, and the executor in any event was bound to divide and sell, the matter of laying off roads in connection with that division, and the time, manner and terms of sale, were purely discretionary and were extinguished by the death of the executor. The imperative part of the trust remaining, it was a case for the interposition of chancery in the appointment of a trustee to execute the will. (Belote v. White, 2 Head, Iowa, 710, and authorities cited; Dominick v. Sayre, 3 Sandf. 555; 4 Sandf. 402; 2 Spence, 365; 2 Russ. 495; 2 Sugd. Powers, 173.)

III. Neither the will nor the law executes in the administrator, in this case, any implied intention of the testator that he should exercise the power which was made personal in the executor. He has no power over the land except as provided by the laws of administration, and can sell only to pay debts and legacies. (Kennerly v. Shepley, 15 Mo. 649; Aubuchon v. Lowry, 23 Mo. 99; Chambers v. Wright, 40 Mo. 485; Collins v. Dulle, 45 Mo. 272.)

IV. If the power of sale and distribution of the proceeds to the seven children, by the executor named, was personal and discretionary in the executor, then the power was extinguished by his death; it did not survive either by anything contained in the will, or by law, which must first presume an intention derived from the will, before it can operate to execute a power in any other person. Without appointment by the court of the administrator de bonis non, with the will annexed, as trustee, he had no authority to execute the trust, however imperative. As simply an administrator with the will, he could not sell lands except to pay debts and legacies, and then only under the order or decree of a court of competent jurisdiction, or the Probate Court.A. Hamilton, for plaintiff in error.

The deed of the administrator with the will annexed did not operate as an execution of the power of sale thus given by the will to the executor. The power conferred upon the executor is, in the fullest sense of the term, discretionary; it is a power in trust, personal to the executor, and consequently the statute (R. C. 1855, art. III, § 1, p. 141) is inapplicable to the case. Upon general principles, a power so essentially personal and discretionary is not transmitted to the administrator with the will annexed. (Greenough v. Wells, 10 Cush. 571; Armstrong v. Park, 9 Humph. 195; Tainter v. Clark, 13 Metc. 220; Tiff. & Bull. Trustees, 759-60, and notes; Cole v. Wade, 16 Ves. 27.) The statute applies only to the sale and conveyance of lands devised to be sold positively or at all events, and it does not extend to the case of discretionary power or power in trust. It was not intended by the Legislature to interfere where the sale is made to...