Homer C. Smith v. Joseph White Estate

• Decision Date: 05 January 1937
• Citation: 188 A. 901,108 Vt. 473
• Parties: HOMER C. SMITH ET AL. v. JOSEPH WHITE ESTATE ET AL
• Court: Vermont Supreme Court

188 A. 901

108 Vt. 473

HOMER C. SMITH ET AL. v. JOSEPH WHITE ESTATE ET AL

Supreme Court of Vermont

January 5, 1937

November Term, 1936.

Validity of Administratrix's Agreement To Sell Property Made Prior to Granting of License---Exceptions to Findings Inadequately Briefed---Questions Briefed But Not Properly before Court---Dismissal of Cross Bill---All Estates Settled as Insolvent---Presentation of Claims against Decedent---Liability of Executors and Administrators for Debts Proved---Creditors to Be Paid Pro Rata---Decree of Specific Performance Permitting Preference as Between Creditors of Estate--- Jurisdiction of Probate Courts---Duties and Powers of Administrator and Liability on Contracts Not within His Power to Make---Decree of Specific Performance Requiring Payment by Administrator out of Funds of Estate---Lack of Jurisdiction over Subject Matter---Action by Court with Respect Thereto.

1. Agreement by administratrix, made before license was granted to sell farm belonging to estate and personal property thereon and to give good title as soon as probate court gave leave to convey, held not void as against public policy so as to be incapable of ratification after license was obtained.

2. In suit in equity for specific performance, where no evidence to sustain exceptions to findings was pointed out, such exceptions were not for consideration in Supreme Court and only question before the Court was whether decree was warranted by pleadings and supported by findings.

3. Where brief on appeal in equity suit did not touch upon facts as stated in findings but attempted to raise other questions either upon assumption of facts not in findings, or by way of saying that chancellor should have found certain facts Supreme Court would ordinarily affirm the decree because these questions were not properly before it.

4. In such suit, where decree was for plaintiffs, it should have included dismissal of defendant's cross bill.

5. Under our statutes all estates, without representation of insolvency, are settled as insolvent estates.

6. All claims of an absolute or legal nature against a person at his death must be presented before the commissioners on his estate for allowance, within the time limited by statute, or they will be barred.

7. Executors and administrators are not liable for debts proved against their estates until after a decree has been made by the probate court for the distribution of the assets among the creditors and the expiration of the time for payment unless personally liable because of an express promise to pay.

8. An administrator is a technical trustee and as such has no right to pay one creditor a larger proportion of his debt than another unless such creditor is given a preference by law.

9. In suit in equity against administratrix of estate and heir of decedent, seeking specific performance of contract for sale of farm and personal property thereon belonging to decedent's estate, where agreement made by administratrix and heir was to sell farm to plaintiffs for sum less than amount due on note secured by mortgage of farm and endorsed by plaintiffs, held that in absence of finding that the estate was solvent, decree of specific performance should not include order for payment of mortgage and arrears of taxes from purchase money and such additional sum from estate as might be necessary, and for transferring of personal property, since making such payment and transfer from the estate when the mortgage debt was partially unsecured might make it impossible to pay other creditors their pro rata shares and enable plaintiffs to gain an unfair advantage.

10. Under our statutes the probate court is given plenary and exclusive jurisdiction in the matter of settlement of estates, and the jurisdiction of the court of chancery in such matters is not original but special and limited, and only in aid of the probate court when the powers of that court are inadequate.

11. An administrator is a representative of limited authority speaking broadly, his duties are to collect the assets of the estate, pay its debts, and distribute the residue to those entitled; his powers are only those delegated to him by statute, and he has no implied powers except such as are necessarily incident to those conferred; beyond this, his contracts, though made in the name and for the benefit of the estate, bind him alone, and if he attempts to pledge the credit of the estate in such a contract, his right to discharge the obligation out of estate funds depends upon its being so beneficial to the estate as to receive the sanction of the probate court.

12. In suit in equity against administratrix of estate and heirs of decedent, seeking specific performance of contract for sale of farm and personal property thereon belonging to decedent's estate, where agreement made by administratrix and heir was to sell farm to plaintiffs for sum less than amount due on note secured by mortgage of farm and endorsed by plaintiffs, held that court of chancery had no jurisdiction to order administratrix to pay money from the funds in the estate in satisfaction of mortgage and arrears of taxes and to transfer personal property, since probate court had exclusive jurisdiction over her administration account and that court alone could allow such payment and transfer in settlement of the account.

13. An objection to jurisdiction over the subject matter is never out of time, and neither waiver nor consent can confer jurisdiction where it is not given by law.

14. A court will take appropriate action, whether moved by a party or not, when lack of jurisdiction over the subject matter is discovered.

APPEAL IN CHANCERY. Bill of complaint seeking specific performance of written contract for sale of farm and personal property thereon. Heard on bill, answer, cross bill and findings of fact by the chancellor at the June Term, 1936, Lamoille County, Buttles, Chancellor. Decree for the plaintiffs. The defendants appealed and filed bill of exceptions. The opinion states the case.

Decree reversed, and cause remanded.

Ernest E. Goodrich for the defendants.

W. E. Tracy for the plaintiffs.

Present: POWERS, C. J., SLACK, MOULTON and SHERBURNE, JJ., and SHERMAN, Supr. J.

OPINION

SHERBURNE

This is an appeal from a decree of specific performance. The findings show that Joseph White died intestate in March, 1935, leaving as his only heirs four children, the defendants Eva Parsons and George E. White, and Joseph White and William White, and leaving an estate, including a farm and personal property in Hyde Park. This farm was encumbered by a mortgage upon which was due the sum of $ 2,900 and accrued interest from December 20, 1934, and the plaintiffs were liable as endorsers upon the note secured by such mortgage.

The defendant Eva Parsons, having been appointed and having qualified as administratrix of the estate of her father, upon the suggestion of her counsel entered into negotiations with the plaintiffs relative to the purchase by them of the farm and personal property thereon, and as a result the parties met in her counsel's office on May 21, 1935, and entered into a written agreement, whereby she as administratrix and the defendant George E. White agreed to convey this farm and personal property to the plaintiffs and to give good title as soon as the probate court should give leave to convey and the estate had been settled to the extent that title could be made good; and the plaintiffs agreed to pay therefor $ 2,400 with interest from that date. On this date Mrs. Parsons had no license from the probate court to sell the real estate, but she made application on May 31, 1935, and her three brothers signified their approval by signing the application. On June 28, 1935, the probate court duly issued to her a license to sell all of the real estate of the deceased as beneficial to the estate. Thereafter, on July 3, 1936, she "ratified the agreement previously made" by sending to Homer Smith, one of the plaintiffs, a postal card, saying, "I have rec'd the papers yesterday, giving permission to deed Real Estate, so when you and your brother can go to Hyde Park & have it done let me know. I can only go afternoons as Havey is carrying mail."

The chancellor construed the written agreement as requiring the defendant administratrix to convey the real and personal property described therein to ...