Ferguson v. Bell's Adm'r

• Decision Date: 31 October 1852
• Citation: 17 Mo. 347
• Parties: FERGUSON et al., Appellants, v. BELL'S ADMINISTRATOR, Respondent.
• Court: Missouri Supreme Court

17 Mo. 347

FERGUSON et al., Appellants,

v.BELL'S ADMINISTRATOR, Respondent.

Supreme Court of Missouri.

October Term, 1852.

1. Under sections 36 and 39 of article 3 of the act concerning administration (R. C. 1845), a county or probate court has jurisdiction to order an executor or administrator to execute a deed confirmatory of one executed by his testator or intestate during minority, upon proof that such testator or intestate, after arriving at full age, verbally ratified the same.

2. Where an infant executed a deed, and after coming of age, expressed satisfaction with her bargain, received part of the consideration money, and spoke of her intention to make a confirmatory deed, but died suddenly without having done so, it was held, that this was a sufficient ratification.

Appeal from St. Louis Circuit Court.

John D. Coalter, for appellants. The reason assigned by the Probate Court for refusing to make the order, is not a valid one. When any court is vested with power to do a particular thing, it has power to do all things necessary to carry out that jurisdiction. That the contract was not affirmed in writing, is the very reason why the jurisdiction of the court is invoked. It is well settled that the deed of an infant is not void, but only voidable. It may be affirmed after arriving at full age by words or acts. Ward v. Steamboat Little Red, 8 Mo. Rep. 358. Youse v. Norcum, 12 ib. 563. 2 Kent's Comm. 234. The act giving the Probate Court power to order an administrator to make a deed, is a remedial one, intended to save a party the trouble, delay and expense of a proceeding in chancery to procure a title, and is to be construed liberally to carry out the beneficial purposes intended.

RYLAND, Judge, delivered the opinion of the court.

This was a proceeding begun in the St. Louis Probate Court by Wm. B. Ferguson and Samuel S. Watson, against James Miller, the administrator of Mary L. Bell, deceased, to obtain an order requiring said administrator to make to them a deed for certain real estate situate in the county of St. Louis. The proceeding is founded on the 36th section of the 3d article of the law on the subject of administration. R. C. 1845. This section provides that, “if any testator or intestate shall have entered into any contract in writing for the conveyance of any real estate, and shall not have executed the same in his lifetime, nor given power by will to execute the same, the other party, wishing a specific execution of such contract, may file a petition to the county court, setting forth the facts, and praying that an order may be made that the executor or administrator execute such contract specifically, by executing to him a deed for the same.”

Section 39 of same article, provides that, if the court, after hearing the parties, believe that specific execution ought to be made, it shall make an order directing the executor or administrator to execute the contract specifically, saving to infants, married women, &c., five years after their disabilities are removed, to file their bill to set aside such order for fraud or otherwise.

The petition sets out that Miss Mary L. Bell, on the 20th March, 1851, for the consideration of $1,920, made a deed to the petitioners for certain real estate described in said deed and in said petition; and on the same day, made a contract in writing with said parties, setting out that, whereas she was at that time under the age of twenty-one years, she bound herself to make, when she should arrive of full age, which would occur on the 14th of August, 1850, another deed confirmatory of the one that day made.

The petition further sets out that, after she arrived at full age, she ratified and confirmed the contract both by word and act; expressed herself well pleased with it, and spoke of her intention to make the confirmatory deed, but delayed it from time to time, and on the 28th June, 1851, ten months and more after she was of full age, she died suddenly without having executed the confirmatory deed, according to her contract, and prays an order on the administrator to make the said deed.

The answer of Miller, the administrator, admits the facts stated in the petition to be true; states that Mary L. Bell was his sister-in-law, being his wife's sister; that she lived in his house for several years before and up to the time of her death; that he knew the circumstances attending the sale and agreement spoken of in the petition; that he knew...