Post v. Caulk

• Citation: 3 Mo. 35
• Parties: POST v. CAULK.
• Decision Date: 31 January 1831
• Court: United States State Supreme Court of Missouri

3 Mo. 35

POST

v.CAULK.

Supreme Court of Missouri.

January Term, 1831.

JOHN F. DARBY, for plaintiff.

EDWARD BATES, for defendant.

M'GIRK, C. J.

This was an action of assumpsit, brought by Thomas Caulk, administrator of the estate, &c., of R. Caulk, on a promissory note made to the intestate in his life-time. The declaration is in the usual form. The defendant pleaded that the plaintiff was not administrator of the goods, &c., of R. Caulk. Issue was taken to the country. On the trial the plaintiff gave in evidence letters of administration granted by the clerk of the County Court of St. Louis county, in the year 1825, to Thomas Caulk, Jr. The defendant objected to the letters going in evidence. The objection was overruled. The defendant then gave in evidenee letters of administration granted by Silas Bent, clerk, as above stated, on the goods, &c., of R. Caulk, in the year 1821, to Thomas Caulk, without the addition of Jr., and to one Stephen Hancock; and proved that Hancock took on himself the administration of the effects, and that Hancock was still living. As to the last letters, they commenced and ended by running in the name of Silas Bent, clerk, and were sealed with the seal of the County Court, but they were signed John Bent, deputy clerk. No other evidence was given except the notes sued on. On this state of facts, the counsel for the defendant prayed the court to say, by way of instruction, that the plaintiff could not recover. The court refused the instruction. A verdict and judgment were given for the plaintiff. The plaintiff in error, to reverse the judgment, makes this point: That in this case the plaintiff cannot be administrator till it is shown in evidence that the former administrators were dead or that the former letters were revoked.

We have no doubt that there cannot be in this State two sets of lawful administrators at the same time, on the same estate. In the case before us, the last administration was granted while a former grant still subsisted, and to make this good, the former letters should have been shown to have been vacated by the act of the court, or by the death of the administrator, or by resignation. See a case in point, 8 Cranch R. 9, &c., Griffeth v. Frazier. To avoid the effect of the principle, it is contended by the counsel for the defendant in error, that the former letters were absolutely void from the beginning, because the letters were signed by John Bent, deputy clerk. It is argued that the deputy is not...