Harney v. Dutcher

• Decision Date: 31 October 1851
• Citation: 15 Mo. 89
• Parties: HARNEY, ADM'R OF DUTY, v. DUTCHER & DUTCHER.
• Court: Missouri Supreme Court

15 Mo. 89

HARNEY, ADM'R OF DUTY,

v.DUTCHER & DUTCHER.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was an action brought by plaintiff as administrator de bonis non of Duty's estate, on a written instrument of defendants, executed to John F. Darby, who was the preceding administrator of said estate, for the hire and conditional return of a slave, belonging to said estate. Plaintiff became administrator on the 22nd day of June, 1850, Darby having previously resigned; and the said obligation or instrument did not mature until the 14th day of July following.

The said instrument of defendants, which was made a part of plaintiff's petition, is in words and figures as follows: “$84, St. Louis, 1849. We, T. B. Dutcher as principal, and C. O. Dutcher as security, promise to pay John F. Darby administrator of the estate of Milton Duty, deceased, the sum of eighty-four dollars, twelve months after date, for value received, negotiable and payable without defalcation or discount, it being for the hire of a negro man named Nat, belonging to said estate. We are to feed and clothe said slave and afford and furnish him medical attendance during the whole of said term; not remove him from the county of St. Louis during said period and to return said slave, if alive, to said administrator, in the city of St. Louis on the fourteenth day of July, 1850. Signed T. B. DUTCHER, C. O. DUTCHER.”

In his petition the plaintiff states, that in and by said instrument, the defendants acknowledged that said sum of $84 was for the hire of a negro man named Nat, belonging to said estate, and which they promised to pay twelve months after date, That defendants further promised, among other things, that they would not remove said Nat from the county of St. Louis, during the period for which he was hired, and that they promised that they would return said slave, Nat, if alive, to said Duty's administrator, &c., in said city on the 14th July, 1850. Plaintiff alleges that said Nat is now alive; that during the period for which Nat was hired, defendants did remove, or permit him to be removed from said county; that said defendants did not return said slave to Darby nor to plaintiff, who is now the successor of said Darby in the administration of said estate.

Plaintiff alleges, that in consequence of the failure to return said slave to said Darby or to plaintiff, he has lost the value of said slave, and that said slave, on the 14th July, 1850, and at the time of commencing this action, was and is worth the sum of $700, in the county, &c., for which sum he asks judgment, &c. A certified copy of said letters of administration, granted to plaintiff on the 22nd day of June, 1850, was filed and made a part of his petition. And plaintiff says, that by means of said letters, he is the successor of said Darby, in the administration of said estate, and that therefore he hath a right to bring this suit. To this petition and accompanying exhibits, defendants filed a general demurrer, which demurrer was sustained by the court below, and to reverse the judgment of said court this cause is brought by appeal to the Supreme Court.

HARNEY, for Appellant. This case presents two questions which it is desired the Supreme Court would decide, viz: 1. Has the plaintiff, under the facts and circumstances of this case, a legal capacity to sue? 2. If he has a legal capacity to sue, are the defendants liable to him for a breach of their promise to return said slave, if alive, to said administrator? That the plaintiff has a legal capacity to sue the defendants, I submit the following:

I. By the 1st section of 3rd article of new Code of Practice, “every civil action must be prosecuted in the name of the real party in interest.” Now as the obligation of defendants is clearly divisible into two parts, the payment of the hire, and the return of the slave, if alive, I suppose it will hardly be contended, that this latter branch is governed by rules which are applicable to personal contracts of the administrator, and that therefore the cases of Lacompte v. Seargent, 7 Mo. R. 351; Thomas v. Relfe, 9 Mo. R 377, and Woodward & Thornton's Adm'r v. McGaugh & Brown, 8 Mo. R. 161, have no application to the case at bar, except in deducing for the plaintiff in this case. Again, an extended indulgence is granted to plaintiff, administrator, by second section of the same article, by providing that “an administrator, &c., may sue in his own name, without joining with him the person for whose benefit the suit is prosecuted. 2. On its face, the obligation purports to be for the hiring and the return to the administrator, of a slave, the property of plaintiff's intestate. The law will presume that the hiring was in pursuance of the order of the Probate Court. But the payment of the hire and the return of the slave were not to be paid nor returned until after Darby had resigned, and the plaintiff had been appointed successor. The 44th section of 1st article, under the head of Administration, Code of 1845, p. 69, says: “If any administrator, &c., shall resign, &c., he shall account for, pay and deliver to his successor, &c., all money, real and personal property of every kind; all rights, credits, deeds and papers of every kind of the deceased.” And by the next section, “the administrator de bonis non may proceed at law against any person possessed of any part of the estate. In this case, by handing over the evidences of hiring out the slaves of said estate, Nat included, did Darby discharge his duty? After his resignation and discharge by the Probate Court, what right had he to the person or further contract of the slave, Nat? By declaring that he shall pay to his successor all rights, credits, deeds and papers of every kind, does the statute intend that he should have made a written assignment of all such deeds, papers, &c., in order to authorize his successor to sue for property of the estate which has been bailed by him, and the time for which the bailment has been made, had not expired? 3. The slave, Nat, was a specific property, belonging to the estate of plaintiff's intestate, and which could be identified as a part of such estate; and therefore, the plaintiff is entitled to the possession of him, or his value. Gamble v. Hamilton, 7 Mo. R. 469. 4. A promissory note given to an administrator, will go to the administrator de bonis non, and not to the representatives of the antecedent administrator. Partridge v. Court, 2 Excheq R. 267; 5 Price, 412. 5. An administrator de bonis non has the same interest in such of the effects as remain unadministered, as was vested in the antecedent administrator. Toller on Ex'rs, 243, 364. 6. An executor is assignee in law of all the goods and chattels of his testator. Toller, 167. 7. “An executor of an executor,” says Williams on Executors, p. 781, “in however remote a series has the same interest in the effects of the first testator as the first immediate executor. With respect, indeed, to choses in action, it should seem to have been established at common law, that an executor of an estate could not bring actions in respect of the original testator. By the statute 25th Edw. III, it is enacted that executors of executors shall have actions of debts, accounts of goods carried away of the first testator.” There is privity of estate in law between an administrator and the administrators de bonis non, which entitles the plaintiff in this action to sue the defendants. In support of this position, I refer to the case of Hirst, Administrator de bonis non of Hirst, v. Smith, 7 Durn. & East, 182. This authority is in the text of 1 Chit. Pl. 14; and also it is in the text of 1 Williams on Ex'rs, 782, and notes. See also, Dale v. Roosevelt, 8 Cowen, 337. See also Sullivan v. Holker, 15 Mass. R. 374. I conclude, therefore, that the plaintiff, under the facts and circumstances of this case, has a legal capacity to sue.

II. Are the defendants liable to plaintiffs for the breach of their promise to return said slave, if alive, to said administrator? 1. If the demurrer in the case shall be overruled, and the facts admitted, that the defendant did remove, or did suffer the slave to be removed from the county of St. Louis, in the language of plaintiff's petition, contrary to their written stipulation, and that thereby the estate has lost its value, then there can be no doubt but that they would be liable to plaintiff, provided, the court decide that he can sue at all. Baggan v. Walter, 12 Smedes & Marsh. 666. 2. But after assuming that the plaintiff has legal capacity to sue defendants, and that they, defendants, used ordinary diligence in efforts to re-capture Nat, after he had run away; still I maintain that defendants are liable for his value to plaintiffs, in consequence of the breach of defendants' promise to return him, if alive, to the administrator, &c. The case of Ellet v. Bobb, 6 Mo. R. 323, decided that in case the slave hired run away, the hirer was bound for his hire; but it...