Griggs v. Nadeau

• Decision Date: 12 February 1915
• Docket Number: 4324.
• Citation: 221 F. 381
• Parties: GRIGGS et al. v. NADEAU.
• Court: U.S. Court of Appeals — Eighth Circuit

221 F. 381

GRIGGS et al. v. NADEAU.

No. 4324.

United States Court of Appeals, Eighth Circuit.

February 12, 1915

Solomon E. King, a resident of Ottawa, La Salle county, Ill., died there in June, 1909, leaving a large and valuable estate. By his will he nominated the plaintiffs in error, defendants in the court below, who were also residents of Ottawa, as executors. They duly qualified as such in La Salle county state of Illinois. The bulk of the large estate of the testator was devised to charity. In addition to the property in the state of Illinois, the testator died seised of over 5,000 acres of valuable farming lands in the counties of Wilkin and Otter Tail, in the state of Minnesota. The will authorized the executors to convert the real estate of which he died seised into cash or interest-bearing securities, and empowered them to make, execute, acknowledge, and deliver bills of sale, assignments of personal property, and deeds to real estate. In order to enable the executors to take charge and dispose of the real estate in the state of Minnesota ancillary administration was granted by the probate court of Otter Tail county, Minn., and the defendants in the court below appointed as such ancillary executors.

The defendant in error, who will be referred to herein as the plaintiff, claiming that there was due him $5,280 for services in securing purchasers for the Minnesota lands under a contract with the defendants as executors, instituted an action in the state district court of Wilkin county, Minn against the defendants as individuals and also as executors of the estate of King, and at the same time procured a writ of attachment from that court upon the ground that they were nonresidents of the state of Minnesota. The sheriff of Wilkins county executed the attachment by levying on the lands belonging to the estate of King lying in Wilkin county. No personal service was had on the defendants, but they entered their appearance as individuals as well as executors and executed a bond for the release of the attachment in conformity with the laws of the state of Minnesota. By proper proceedings the cause was removed to the United States District Court for the District of Minnesota, and upon a trial to a jury there was a verdict for the plaintiff against the defendants, 'as executors' only, for the sum of $5,570.84, and judgment for that sum was entered against them as such executors.

During the trial the following stipulation was entered into in open court: 'That this action is dismissed as to Clarence Griggs, personally, and William W. Nash, personally, and that judgment upon any verdict which may be rendered herein in favor of the plaintiff shall be entered against Clarence Griggs and William W. Nash, as executors of the estate of Solomon E. King, deceased.'

From that judgment, this writ of error was prosecuted by the defendants, as executors of said estate.

E. M. Griggs, of Streator, Ill. (James A. Brown, of Fergus Falls, Minn., and Boys, Osborn & Griggs, of Streator, Ill., on the brief), for plaintiffs in error.

F. W. Murphy, of Wheaton, Minn. (N. F. Field, of Fergus Falls, Minn., and A. G. Divet, of Wahpeton, N.D., on the brief), for defendant in error.

Before SANBORN and SMITH, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge (after stating the facts as above).

The record fails to show that there was a single exception taken by the defendants during the trial. No request was made for a directed verdict, nor was there a motion in arrest of judgment. The general rule is that, when no exceptions are taken at the trial to a jury in the trial court, an appellate court has no power, on writ of error, to review any alleged errors committed during the trial. Mexico International Land Co. v. Larkin, 195 F. 495, 115 C.C.A. 405.

But there is an exception to this rule. If it appears that the complaint failed to state a cause of action, which would have necessitated sustaining a motion in arrest of judgment after verdict, it is not too late to allege it as error in the appellate court. Slacum v. Pomery, 6 Cranch, 221, 3 L.Ed. 205; Campbell v. Boyreau, 21 How. 223, 226, 16 L.Ed. 96; Masterson v. Howard, 18 Wall. 99, 103, 21 L.Ed. 764; Lehnen v. Dickson, 148 U.S. 71, 72, 13 Sup.Ct. 481, 37 L.Ed. 373; Kentucky Life Ins. Co. v. Hamilton, 63 F. 93, 11 C.C.A. 42; Western Union Telegraph Co. v. Sklar, 126 F. 295, 302, 61 C.C.A. 281; Elliott on Appellate Procedure, Secs. 471, 475. In Slacum v. Pomery, Mr. Chief Justice Marshall said:

'It is not too late to allege as error in this (appellate) court a fault in the declaration which ought to have prevented a rendition of the judgment of the court below.'

That property of a decedent, while in the course of administration, is not subject to attachment, is well settled. Byers v. McAuley, 149 U.S. 608, 13 Sup.Ct. 906, 37 L.Ed. 867. But as the defendants released the attachment by the execution of a bond, whereby they obligated themselves to perform the judgment of the court, that question is not before us.

Looking at the complaint, and treating it solely as against the executors in their official capacity, the action against them as individuals having been dismissed and a judgment de bonis testatoris entered, it fails to show a cause of action against them as such executors. The law is well settled that an executor or administrator has no power to bind the estate he represents by his individual contract, unless expressly authorized by the will or by statute, or by an order of the probate court in which the administration is pending. A person thus employed, in the absence of such authority, must look to the executor, individually, who employed him. Schouler on Executors and Administrators, Sec. 256; 2 Woerner on Administration, p. 756; Thompson v. Canterbury (C.C.) 12 F. 485; Kelley v. Kelley (C.C.) 84 F. 420; Austin v. Munroe, 47 N.Y. 360; O'Brien v. Jackson, 167 N.Y. 31, 60 N.E. 238; 11 Am.and Eng.Enc.of Law, p. 932; 18 Cyc.p. 880; Tucker v. Grace, 61 Ark. 410, 33 S.W. 530; Pike v. Thomas, 62 Ark. 223, 35 S.W. 212, 54 Am.St.Rep. 292.

Neither the complaint nor the evidence in the case show that any such authority was ever granted to the executors. That a contract for an agent's commissions for making a sale of assets of the estate only makes the executors individually liable was expressly held in Reynolds-McGinness Co. v. Green, 78 Vt. 28, 61 A. 556; Johnson v. Leman, 131 Ill. 609, 23 N.E. 435, 7 L.R.A. 656, 19 Am.St.Rep. 63; New v. Nicoll, 73 N.Y. 127, 29 Am.Rep. 111, and Truesdale v. Philadelphia, etc., Co., 63 Minn. 49, 65 N.W. 133.

The authorities cited on behalf of the plaintiff are not in point. 18 Cyc.p. 1043, cited by counsel, expressly limits the liability of the estate to obligations created by the decedent. On page 880 the same author quotes with approval from Seip v. Drach, 14 Pa. 352, 356, where it was held:

'Nothing is better settled than that an executor or administrator is answerable in his official character for no cause of action that was not created by the act of the decedent himself. In actions against the personal representative on his own contracts and engagements, though made for the benefit of the estate, the judgment is de bonis propriis; and he is, by every principle of legal analogy, to answer it with his personal property.'

Owen v. Riddle, 81 N.J.Law, 546, 79 A. 886, Ann. Cas. 1912D, 45, is claimed to be conclusive of plaintiff's contention, but an examination of that case shows that the only question before the court was as to the effect of the statute of frauds, it being claimed that the authority of the administrator to sell and employ an agent to sell on commission was not in writing; but the court held that the will authorizing the executor to sell being in writing satisfied the requirements of the statute of frauds.

Authorities are also cited to the effect that specific performance of a contract for the sale...