Lake v. Meier

• Citation: 42 Mo. 389
• Parties: JAMES R. LAKE, Administrator of JARED D. TYLER, Respondent, v. ADOLPHUS MEIER, Administrator of EDWARD VON DEMBUSCH, Appellant.
• Decision Date: 31 March 1868
• Court: United States State Supreme Court of Missouri

42 Mo. 389

JAMES R. LAKE, Administrator of JARED D. TYLER, Respondent,

v.ADOLPHUS MEIER, Administrator of EDWARD VON DEMBUSCH, Appellant.

Supreme Court of Missouri.

March Term, 1868.

Appeal from St. Louis Circuit Court.

A. M. Gardner, for appellant.

The plaintiff in this action, by attempting to have his alleged claims allowed in the Probate Court, seeks to force the administrator to complete a purchase of real estate charged to have been made by Von Dembusch in his lifetime.

I. This is an illegal attempt on the part of respondent to obtain by a proceeding at law what could only be obtained, if at all, by proceedings in equity, or by a special order, in the form of a decree, for a specific performance of the alleged contract, with notice to all the parties in interest. (Gen. Stat. 1865, chap. 122, p. 496, § 2.) It certainly cannot be pretended that the allowance of a claim in the form of an account in the usual way is such an order as is required or was intended by the provisions of that statute.

II. If a person dies possessed of a contract for the purchase of lands before a title is made to him, his interest under such contract descends to his heirs, and does not rest in his executor or administrator. The heirs alone can complete the purchase, although at common law they might compel the administrator to pay for the same out of the personal estate. (Willard on Exec. 330, etc.; Champion v. Brown, 6 Johns. Ch. R. 398; Griffith v. Beecher, 10 Barb. 432; Aubuchon v. Levy, 29 Mo. 99; Logan v. Caldwell, 29 Mo. 373; Lane v. Thomson, 43 N. H. 320; Gladson v. Whitney, 9 Iowa, 267; Smith v. McConnell, 17 Ill. 135.)Cline, Jamison & Day, for respondent.

I. The Probate Court had jurisdiction, and it was its duty to allow plaintiff's claim for the purchase money. (Gen. Stat. 1865, p. 502, § 9; Jewett v. Weaver's Adm'r, 10 Mo. 234; State to use of Smith v. Paul's Ex'r, 21 Mo. 51.)

II. Even if the deed should be defective, the court below properly allowed the claim for the purchase money; and upon the payment of the same, the legal representatives could compel the legal title to be vested in them.

WAGNER, Judge, delivered the opinion of the court.

The proceeding in this case was originally instituted in the Probate Court. It seems that in 1856 Jared D. Tyler died, and Lake, the respondent, was duly appointed his administrator; that the Probate Court made an order to sell certain real estate belonging to the estate of Tyler, and that at the sale one Edward Von Dembusch became the purchaser, and in his lifetime paid thirty dollars of the purchase money. Lake made a report of his proceedings at the next term of the court after the said sale, which report was approved and the sale confirmed. Before the deed was made out and executed and the terms of the sale complied with, and prior to the time of the approval and confirmation by the court, Dembusch, the vendee, died, and Meier, the appellant, was duly appointed his administrator. Lake executed a deed, with Dembusch or his legal representatives as grantees, and tendered the same to Meier, and...