Dunn v. Wallingford

• Decision Date: 03 February 1916
• Docket Number: 2682
• Court: Utah Supreme Court
• Parties: DUNN v. WALLINGFORD, et al

155 P. 347

47 Utah 491

DUNN v. WALLINGFORD, et al

No. 2682

Supreme Court of Utah

February 3, 1916

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Louis Dunn against Harry S. Wallingford and the Salt Lake Security & Trust Company, a corporation, administrator of the estate of Ethel Wallingford, deceased.

Judgment for defendants. Plaintiff appeals.

REVERSED and REMANDED, with directions.

D. O Willey and Dey, Hoppaugh & Fabian for appellant.

APPELLANT'S POINTS.

It is doubtful if the probate division of this court would have any authority to determine the rights of any persons save heirs legatees or devisees. If this were true, a bill for specific performance joining the administrator would be the only remedy. (Estate of Ryder, 141 Cal. 366; In re Boyce Estate, 74 N.Y.S. 958; In re Randall's Estate, 46 N.E. 945.) But whether proceedings in the probate division were possible or not, the remedy in equity is clearly appropriate. (Blount v. Dillaway, 199 Mass. 330, 17 L. R. A. [N. S.] 1036; Abbott v. Gaskins, 63 N.E. 933; Leach v. Fobes, 11 Gray [Mass.] 506; Williams v. Vreeland, 32 N. J. Eq. 135.) The administrator is a proper party, and indeed under the circumstances it would be almost his duty to refer to the court sitting in equity for proper instructions. (Stevens v. Clough, 47 A. 615.)

While the court finds that Dunn was not entitled to any portion of the estate, nevertheless by the findings it is distinctly and expressly adjudged and determined that the representations which Dunn made and which Wallingford says induced the agreement were neither false nor fraudulent. We have then two parties differing in good faith and an agreement reached. Such a compromise is based upon a valid consideration and is binding and not against public policy. (Grochowski v. Grochowski, [Nebr.] 13 L. R. A. [N. S.] 485.) We also refer to the elaborate annotations: Blount v. Dillaway, 17 L. R. A. (N. S.) 1036. Where one attempts to bind the estate and fails to do so for want of authority, he binds himself personally and may be sued on the contract individually. McCalley v. Wilborn, 77 Ala. 549; Andrus v. Blazzard, 23 Utah 233.) It would be a strange and unique doctrine if one could make a contract, receive and retain the fruits; and successfully repudiate all personal liability because he had no authority to make the contract for another.

D. W. George and W. R. Hutchinson for respondents.

RESPONDENT'S POINTS.

The executor or administrator of decedent has no power to bind the latter's estate by any note or bill which he may make in his representative capacity. So also is it impossible for the executor or administrator to bind the estate by the acceptance of a bill drawn in settlement of a claim against the estate. (2 Woerner Adm., Sec. 356; Sterrest v. Barker, 51 P. 695; Melone v. Davis, 7 P. 703; Austin v. Monroe, 47 N.Y. 360; Renwick v. Garland, 82 P. 89; First National Bank of White Sulphur Springs v. Collins, 43 P. 499; Miller & Lux v. Gray, 68 P. 770.) It seems that, if an executor or administrator wishes to avoid personal liability, he must expressly stipulate that the creditor shall be paid out of the estate only. Numerous cases support this proposition. In Studebaker v. Montgomery, 74 Mo. 101, 103, the court says:

"An administrator who signs a note describing himself as administrator, does not limit his liability, unless he expressly confines his stipulation to pay out of the estate."

And again in East Tennessee Company v. Gaskell, 2 Lea. 742-745:

"If an executor or administrator make a note or bill and sign it as executor or administrator, he is personally liable, unless he expressly limit his promise, 'out of the assets of my testator's estate,' or, 'if the assets be sufficient,' or in some equivalent way. 1 Parson on Contracts, page 128."

See also Patterson v. Craig, 1 Baxter 291, 293; New v. Nicolls, 73 N.Y. 127, 131; Banking Company v. Moorehead, 116 N.C. 413; 2 Parsons on Bills and Notes, page 6.

FRICK, J. McCARTY, J., STRAUP, C. J., concurring.

OPINION

FRICK, J.

Plaintiff commenced this action in the district court of Salt Lake County against Harry S. Wallingford, who, it is admitted, is the surviving husband and only heir of Ethel Wallingford, deceased, late of Salt Lake County, and also against Salt Lake Security & Trust Company, a corporation, as administrator of the estate of said Ethel Wallingford, deceased, hereafter called administrator, to determine and establish his rights under a certain writing or agreement which was executed by the plaintiff and said Harry S. Wallingford after the death of his said wife. The agreement reads as follows:

"This agreement made and entered into this thirty-first day of January, A. D. 1913, by and between Harry S. Wallingford, of Salt Lake City, Utah party of the first part, and Louis Dunn, of the same place, party of the second part, witnesseth:

"Whereas, the said first party is the heir at law of the estate of the late Ethel Wallingford, sometimes more commonly called Ethel Williams;

"And whereas, the said second party claims certain interests in the said estate;

"And whereas, the said second party is desirous of settling any claim against the said estate he may hold and allow the first party to be appointed administrator of the said estate;

"Now, therefore, in consideration of the covenants and agreements hereinafter set out it is agreed by the respective parties:

"The first party agrees as follows:

"To pay the said second party the sum of forty-four hundred dollars, from the said estate aforesaid, upon the condition that the said estate shall consist of personal property to the value and amount of approximately eleven thousand five hundred dollars.

"That upon the payment of the said sum aforesaid to release and forever discharge the said first party, as administrator or otherwise, from any and all liability or debt, owing to the said second party as any claim against the said estate that may be owing to the said second party."

It, among other things, was alleged in the complaint that said Wallingford was duly appointed administrator of said estate on the 31st day of January, 1913, and was thereafter removed and said company, in April, 1913, was appointed in his stead; that said Wallingford has repeatedly asserted that he intended to defraud the plaintiff, in that he did not intend to and would not comply with the terms of said agreement, but intended to and would receive and appropriate all the funds of said estate and leave the State of Utah. It was also alleged that said Ethel Wallingford died in Salt Lake County on the 10th day of December, 1912, and that the personal property of her estate exceeded in value the amount stated in the agreement. The consideration or grounds upon which the agreement was based and many other facts respecting the nonresidence and lack of means of said Harry S. Wallingford are set forth in detail. Said Wallingford and the administrator filed separate answers, in which the agreement is attempted to be voided upon the alleged grounds of misrepresentation and fraud.

When the case came on for trial, it appears from the bill of exceptions that the proceedings were almost entirely limited to colloquies between the respective counsel and the court. The agreement was admitted in evidence, and it was also made to appear that the personal property of the estate was of a value exceeding $ 11,500, that said Wallingford was entitled to the whole thereof, and that no claims had been allowed against the estate. While the case was being heard Mr. Wallingford was called as a witness in his own behalf, and, after he was asked and had answered a few immaterial questions, he addressed the court thus:

"I would like to enter no contest in this case, if the court please. I would like--"

The court inquired of him:

"You want to withdraw?"

The witness replied:

"Yes; I want to withdraw."

Counsel then made some statement, and Mr. Wallingford continued:

"If the court please, I want to enter no contest in this case, because I am the one the complaint is drawn against; I guess I have that right, I think. I have no attorney to advise me."

Counsel who signed Mr. Wallingford's answer, and who had questioned him, then said:

"I am not going to offer any more testimony, if the court please. I will withdraw my question, the last question to the witness."

And further:

"Now, we withdraw the last question which was asked the witness (Wallingford) on Saturday, and rest."

Counsel, speaking for the administrator, then said:

"The two defendants here (Wallingford and the administrator) are different individuals. The estate is here independent of the other defendant, and I desire that the case rest as it stands."

At this point Mr. Wallingford made a statement to the court which is not in the record and we have no means of determining what it was. Counsel then further said:

"I know this, that I represent the administrator of this estate, and, no matter what Mr. Wallingford may do in this matter, it is the sworn duty of the executor of this estate to defend this cause, and no matter--

"The Court: He can only withdraw as to himself. He cannot withdraw as to the executor (administrator). That is another matter entirely."

Thus the proceedings ended, so far as any attempt to offer evidence was concerned. The court, however, made findings none of which are material to this decision, except, perhaps, that the plaintiff was not guilty of any misrepresentation or fraud in obtaining the agreement; and all other findings seem to have been based upon the failure of the parties to produce any evidence in support of the issues. The court, for some reason, however, concluded that the...