Frye v. Kimball

Decision Date31 March 1852
Citation16 Mo. 9
CourtMissouri Supreme Court
PartiesFRYE et al., Appellants, v. KIMBALL, Respondent.<sup>a1</sup>

The third and fifteenth sections of the act of the Missouri Legislature, concerning executors and administrators, approved February 21st, 1825, have no retrospective operation, and do not, of themselves, without some action of the court, have the effect to revoke the letters of an administratrix, who had married before the passage of the act.

Appeal from St. Louis Circuit Court.

This was ejectment, in the St. Louis Circuit Court, against Kimball, tenant of the Lindells, for a piece of ground lying in the city of St. Louis. It was tried at the November term, 1847, and there was a verdict and judgment in favor of the defendant.

On the 10th of August, 1824, letters of administration were issued by Silas Bent, clerk of the St. Louis County Court, to Elizabeth Hinderlong, on the estate of Jacob Frye, alias Hinderlong, late of said county, which were duly recorded on the same day, she having given bond, with J. Spalding and Frederick Dent as securities, in due form, in the sum of $5,000, for the faithful administration of the said estate.

On the 29th of December, 1824, appraisers were sworn, and made an inventory and appraisement of the property of Jacob Hinderlong, alias Jacob Frye, which were filed on the 24th of March, 1826. The appraisement amounted to $778.25. Previous to March 24th, 1826, sale was made of the inventoried articles, amounting to $507.50 1/2. After the letters were issued, and somewhere about January 1st, 1825, said Elizabeth Hinderlong intermarried with one John Vogle.

On the 24th of March, 1826, a settlement was made with the Probate Court, under the style of John Vogle and Elizabeth, his wife, administrator and administratrix of Jacob Hinderlong, alias Jacob Frye, deceased, when the court ascertained that the administrators had received, on account of the estate, $716.12 3/4, and had expended $843.58 1/3, leaving a balance against the estate of $127.45 1/2.

On the 26th of September, 1826, John Vogle and his wife Elizabeth, administrators of Jacob Frye, alias Hinderlong, made another settlement, wherein the entry is, that they have received, since the last settlement, $56.30 3/4, and have disbursed since the last settlement, and including the balance thereof, $207.46 1/2, leaving a balance in favor of said administrators, against said estate, of $152.15 3/4; and on the 16th of August, 1828, the court discharged them from any process, unless on application of some one interested.

On the 25th of March, 1826, a petition, which was sworn to, was presented to the Probate Court, by John Vogle and Elizabeth, his wife, administrator and administratrix of Jacob Hinderlong, alias Jacob Frye, for an order for the sale of so much real estate as would pay and satisfy the remaining debts, alleging that the assets that had come to their hands amounted to the sum of $716.12 1/2, and that the debts proved and allowed against the estate, by the Court of Probate, amounted, as per schedule, to the sum of $1847.30, and that there was no personal property remaining, nor any debts available. A list of the debts allowed and of the real estate accompanied the petition, consisting of two pieces only, one of which was half of the brick house, and the other was the land in question, consisting of about five arpens, then lying just west of the city of St. Louis. An order of publication was made, returnable to the third Monday of June. At the June term, 1826, an order, reciting publication proved, etc., and that there were no moneys or personal effects for the payment of debts, was made for the sale of the half of a brick house, one of the pieces of property belonging to Frye at the time of his death.

At the September term, 1826, on the 26th of the month, the report of the sale of the half of the brick house was continued.

On the 6th of October, 1826, John Vogle and wife, administrators, etc., report the sale of the half of said brick house to Frederick Dent, for $700, which was confirmed.

Afterwards, at the December term, 1826, to-wit: On the 4th of January, 1827, said John Vogle and wife, administrators as aforesaid, filed their petition, sworn to, setting forth that the sale of the half of the brick house did not bring enough, with the personal effects, to pay the debts of the deceased, and praying for an order for the sale of the other piece of real estate, to-wit: a house and six arpens of land in the vicinity of St. Louis, being the same that Jacob Frye died possessed of, and part of the land owned by Jeremiah Connor. Thereupon an order is made by the court for publication of notice to all interested in said application, and that it will be granted, unless cause can be shown to the contrary, at the next term, etc., and a sale be ordered of said land, describing it as above.

On the 19th of March, 1827, the court take up the petition, and state that the publication of the notice has been made according to law, and that there are no assets or personal effects to pay the debts, and thereupon order the said administrator and administratrix, on the first Monday of May then next, at the court-house door, in the city of St. Louis, to proceed to sell, at public auction, for cash, during the sitting of the Circuit or Probate Court, the said land described as above, first having the same appraised, and notice published four weeks in a newspaper, and advertisements put up in ten public places twenty days before sale.

On the 8th of May, 1827, the said John and Elizabeth, administrator and administratrix of Jacob Frye, alias Hinderlong, deceased, file their report, which the County Court then approve, the jurisdiction of the Court of Probate having, in the mean time, been transferred to the County Court; which report set forth that the house and lot mentioned in the order of sale were exposed to sale, to the highest bidder, during the sitting of the Circuit Court, on the first Monday, being the seventh day of May, the sale having been duly advertised, according to the direction of the order, and the appraisement having been made; and that Jesse Lindell was the highest bidder for the same, at the sum of $1040, and that they are ready to make a deed as soon as the report should be approved. The appraisement is returned with the report, as having been made on the fifth day of May, 1827, at $1000, together with the affidavit of the appraisers.

The record does not state that this report was verified by affidavit.

Immediately after the approval of the said report, the deed was made by John Vogle and Elizabeth, his wife, dated May 8th, 1857, to Jesse G. Lindell and Peter Lindell, which deed recited the order of sale, appraisement, advertisement of sale, sale to the Lindells, and report and ratification thereof, and purported to convey all the right and estate of Jacob Frye, alias Hinderlong, at the time of his death.

This deed was acknowledged by John Vogle and wife, as administrator and administratrix of Jacob Frye, alias Hinderlong, deceased, in the County Court of St. Louis county, on the ninth of May, 1827, and was recorded on the twentysecond day of the same month; but the certificate of acknowledgment does not state that they were personally known, etc.

On the 15th of February, 1828, under the title of John Vogle, administrator, and Elizabeth Vogle, administratrix of Frye, alias Hinderlong, report of sale,” is the following entry, viz:

“It is ordered by the court that the entry made in book B, page 312, of November 8th, 1827, of the minutes of the court, be expunged, and the following entry made in lieu thereof,” and then follows an order, purporting to confirm the same report and make it valid forever, which order is a long and formal entry.

It appeared that Jacob Frye, alias Hinderlong, owned the property, and lived on it at the time of his death; that the plaintiffs are his children, and were under age at the time of his death.

The plaintiffs asked an instruction, that if Jacob Frye was seized at his death and the plaintiffs were his heirs-at-law, they were entitled to recover, which was refused. One was given for the defendant, to the effect that the record from the Court of Probate and the deed to the Lindells were sufficient to pass the title.

The sole question is, whether the administration sale and the deed to the Lindells was void.

F. M. Haight, Leslie & Lord, for plaintiffs in error.

The third and fifteenth sections of the act of 1825, concerning executors and administrators, expressly prohibit a married woman from acting as executrix or administratrix, after the law should take effect. The administration sale was, therefore, void.

The legislature had power to pass this act. Its power to suspend an administration, to change, alter or modify laws for the distribution or settlement of the estates of decedents, cannot be questioned.

This law was not ex post facto, because it does not apply to criminal proceedings.

It is not retrospective, because it does not affect the validity of past transactions.

It does not impair the obligation of contracts, because there is no contract to be impaired. 22 Pick. 430; 6 Pick. 501.

The meaning of the term “contract,” as used in the Constitution of the United States, is well defined in the case of Dartmouth College v. Woodward, 1 N. H. 111.

John and Elizabeth Vogle, being prohibited by law from acting in the administration of this estate, could not, with the aid of any decree or order of a Probate Court, confer a valid title. 6 Wheat. 119; 7 Wend. 148.

That the sale took place under the sanction of a court, will not prevent its validity from being inquired into, collaterally, in this suit. There is a distinction to be observed between the erroneous decree of a court which has jurisdiction, and the decree of a court which has no jurisdiction. 1 Peters, 340; 3 Howard, 762; 9 Cow. 227; 19 J. R. 39; 1 Hill, 130; 3 Howard, 762.

The ground of the jurisdiction of an inferior tribunal must...

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7 cases
  • Evans v. Snyder
    • United States
    • Missouri Supreme Court
    • April 30, 1877
    ...vs. Monks, 43 Mo. 502; Shriver's Lessee vs. Lynn, 2 How. 43; Hawkins vs. Hawkins, 28 Ind. 66; Babbitt vs. Doe, 40 Ind. 355; Frye vs. Kimball, 16 Mo. 25; Wagn. Stat. §§ 10, 25-27, pp. 94-97; Bank of Hamilton vs. Dudley's Lessee, 2 Pet. 523; Medlin vs. Platte Co., 8 Mo. 235; Milan vs. Pembert......
  • Bettes v. Magoon
    • United States
    • Missouri Supreme Court
    • April 30, 1885
    ...its operations, did not divest the title thus acquired by the husband, nor could it without being retroactive and unconstitutional. Frye v. Kimball, 16 Mo. 9; Routsong v. Wolf, 35 Mo. 124; A. & P. R. R. Co. v. St. Louis, 66 Mo. 228; Ex parte Bethurem, 66 Mo. 545; Williams v. Courtney, 77 Mo......
  • Speck v. Wohlien
    • United States
    • Missouri Supreme Court
    • October 31, 1855
    ...can not be reached collaterally in this suit. It could be reached only by appeal. (R. C. 1845, p. 106; 2 Verm. 253; 2 Green's Ch. R. 147; 16 Mo. 9.) Wolff, the co-administrator, could have enforced the sale against Mrs. Wohlien in a court of equity, by a bill for specific performance. (2 Gr......
  • State ex rel. Hammer v. Vogelsang
    • United States
    • Missouri Supreme Court
    • June 20, 1904
    ...the statute to call upon the property-owner for his return. Leete v. Bank, 115 Mo. 184, 141 Mo. 574; Routsong v. Wolff, 35 Mo. 174; Fry v. Kimball, 16 Mo. 9; St. Louis Clemens, 52 Mo. 133; Ins. Co. v. Flynn, 38 Mo. 483; Gladney v. Sydnor, 172 Mo. 318. (b) It deprived appellant of due proces......
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