Johnson v. Beazley

Citation65 Mo. 250
PartiesJOHNSON ET AL., PLAINTIFFS IN ERROR v. BEAZLEY.
Decision Date30 April 1877
CourtUnited States State Supreme Court of Missouri

Error to Crawford Circuit Court--HON. ELIJAH PERRY, Judge.

J. R. Arnold for plaintiff in error.

J. C. Kiskaddon for defendant in error.

An administrator's deed is made by the statute prima facie evidence of the facts therein stated. W. S., page 98, Sec. 37; Moore v. Wingate, 53 Mo. 398. Then by this deed we ascertain that all the proceedings were regular, and were approved by the court, and that Scott acted as administrator de facto, although he might not be such de jure, and that the probate court recognized him in that capacity. Nor do the plaintiffs dispute his appointment, but only the jurisdiction of the court to make it. There is but one objection apparent upon the face of the deed, and that is that there were but two appraisers. But that is a mere irregularity which will not vitiate the defendant's title, if the court had jurisdiction. Moore v. Wingate, 53 Mo. 398. The only attack upon the jurisdiction of the court is, that the deceased was not domiciled at the time of his death in Crawford county. On this point see Dequendre v. Williams, 31 Ind. 444; Grignon v. Astor, 2 Howard 319; Thompson v. Toiumi, 2 Peters 165; Sheldon v. Newton, 3 Ohio St. 494. Probate courts are not courts of special or limited jurisdiction; they are not inferior courts in the technical sense of the term, because an appeal lies from their decision, but they are courts of record having an original general jurisdiction over a particular subject. See cases already cited, and, Schroyer v. Richmond, 16 Ohio St. 455; Parsley v. Hayes, 22 Iowa 34. The proceedings of probate courts are in rem; all the world are parties. All that is required is jurisdiction of the subject matter. Cases already cited, and, Satcher v. Satcher 41 Ala. 26; Perkins v. Fairfield, 11 Mass. 227; Robb v. Irwin, 15 Ohio 689; Benson v. Cilly, 8 Ohio St. 604; Barden v. State, 6 Eng. (Ark.) 519. In a collateral proceeding other courts will not inquire whether or not the deceased was a resident of the county in which an administrator of his estate is appointed. Wight v. Wallbaum, 39 Ill. 554; Fisher v. Bassett, 9 Leigh 119.

HENRY, J.

Plaintiffs brought ejectment against defendant for a tract of land situate in the county of Crawford, described as follows: “The northeast quarter of section thirty, township thirty-six, range four, west.” Both parties admitted title in one Thomas J. Higginbotham, and it was agreed that plaintiffs are his heirs at law. Defendant claimed, under a deed from H. C. Scott, the administrator of the estate of said Higginbotham, made on a sale of said land, under and in pursuance of an order of the probate court of Crawford county of the December term, 1866. The land was sold by said administrator on the 19th day of March, 1867. At the next term of said court, June, 1867, the administrator's report of said sale was approved by the court, and on the 12th day of June, 1867, he executed a deed for the premises to defendant. To the admission of this deed in evidence plaintiffs objected, on the ground that it did not appear by said deed “that the probate court of Crawford county had jurisdiction of the estate of said Higginbotham, or that said court had authority to appoint H. C. Scott to take charge of the same; that it appeared by said deed that the land was appraised by only two householders; that there was no evidence of the appointment of Scott as administrator of said estate.” These objections were overruled, and the deed was read, as evidence, to the jury; and this was all the evidence offered by defendant. Plaintiffs then offered to prove, by competent witnesses, that at the time of his death, said Higginbotham resided in the county of Dent, and that he never resided in Crawford county. This was objected to by defendant and excluded by the court. But inasmuch as, in their testimony in chief, plaintiffs had been permitted, without objection, to prove the same fact, we shall take it for granted that Higginbotham did, at his death, reside in Dent county. There was a judgment for defendant, and plaintiffs have brought the cause to this court by writ of error.

The three alleged errors are: that it does not appear that the probate court of Crawford county had jurisdiction of the estate of Higginbotham, or that the court had authority to appoint Scott administrator of his estate, that it appeared by the deed that the land was appraised by only two householders; that there was no evidence that Scott had ever been appointed administrator.

1. AN ADMINISTRATOR'S DEED.

The second point made by plaintiffs was decided by this court in Moore v. Wingate, 55 Mo. 398. Section 6, Wagner's Statutes, 2d Vol.p. 887 provides that “words imparting joint authority to three or more persons, shall be construed as authority to a majority of such persons, unless otherwise declared in the law giving such authority.” In Moore v. Wingate, it was held that a certificate of appraisement signed by two of the appraisers was sufficient.

2. ___: recital.

With regard to the third point, Sec. 35, Wag. Stat., 1 Vol. 98, provides that “if such report (report of sale) be approved by the court, such sale shall be valid, and the executor or administrator, or if he be the purchaser, the clerk of the court shall execute and deliver to the purchaser a deed referring, in apt and appropriate terms, to the order of sale, and the court by which it was made, the certificate of appraisement, the advertisement, the time and place of sale, the report of the proceedings, and order of approval thereof by the court, and the consideration and conveying to the purchaser all the right, title and interest which the deceased had in the same.” Sec. 37, same page, provides that “such deed shall convey the decedent's title, and be evidence of the facts therein recited.” The deed to defendant, it will be observed, contains all the recitals required by the statute. It recites, that on the 8th day of December, 1866, by a proper order of record, H. C. Scott, as administrator of the estate of Thos. J. Higginbotham, was ordered to sell the real estate in controversy. In the acknowledgment of the deed in open court by the administrator, said Scott is again mentioned as the administrator of said estate. As the statute makes the deed evidence of such facts as are required to be recited in the deed, no other proof than the deed itself was necessary to establish, in the first place, that said Scott was administrator of said estate.

3. PROBATE COURT JUDGMENTS: jurisdiction, wills and administration.

The remaining question is one of considerable difficulty. Some of the ablest courts in the United States have held the doctrine contended for by the plaintiffs in error, while others, of equal ability, have ruled otherwise. The decisions of our own court are not in entire harmony with each other, and in several of our sister States the same vacillation will be observed in the adjudications on this subject. In this perplexing conflict of authority, we can but weigh the authorities and arguments, and incline, as in our judgment, they preponderate.

The 12th section of article 5 of the constitution of this State, in force when the probate court of Crawford county was established, was as follows: “Inferior tribunals shall be established in each county for the transaction of all county business, for appointing guardians, for granting letters testamentary and of administration, and for settling the accounts of executors, administrators and guardians.” By the act of the General Assembly creating this court, (Sess. Acts 1855, page 499,) exclusive original jurisdiction was conferred upon it, in all cases relative to the probate of last wills and testaments, granting letters testamentary and of administration, settling and allowing accounts of executors and administrators, and determining all disputes and controversies whatever, respecting wills and the right of executorship and administration. By the 5th section, it was made a court of record, and true and faithful records of its proceedings were required to be kept. By section 3, article 1 of the administration law, it is provided that “letters testamentary and of administration shall be granted in the county in which the mansion or place of abode of the deceased is situated. If he had no mansion house and be possessed of lands, letters shall be granted in the county in which the land or the greater part therof lies, etc.” The assumption upon which is based all the argument for holding the record as a nullity is, that the county and probate courts of this State are of inferior and limited jurisdiction, although expressly made courts of record by the statute, with exclusive original jurisdiction over the subjects committed to them, and although the constitution of the State provided for their creation, and, in general terms, defined the jurisdiction that was to be conferred upon them. It is unnecessary to refer to cases decided by this or other courts, in regard to special jurisdiction confided by statute to justices of the peace or to circuit courts, wherein those courts had no jurisdiction of the subject, except as conferred and restricted by the statute. In such cases it is well settled in this State, that the jurisdiction of the court must appear in the record, and that, if it do not so appear, the judgment may be attacked in collateral proceedings. The case of Lacey v. Williams, 27 Mo. 280, was one in which a guardian was appointed for an infant not residing in the county where the appointment was made, but owning land therein, and it was a direct proceeding to remove the guardian so appointed. It is clear that in that case the court had no such power as it exercised, but the main question in this was not raised in that case, and it is no authority for the position here taken by the plaintiffs in error. It is not intimated in the opinion of the court that the action of a...

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