Bull v. Bal

OPINION OP THE COURT. HANNA, J. The first assignment of error is that the District Court erred in its third finding of fact “that letters of administration were duly issued to Willis J. McGinnis, who qualified as such administrator with the will annexed.” The second error assigned is that the court erred in its 17th finding of fact “that Willis J. MfcGinnis, administrator with the will annexed of the estate of Thomas J. Bull, deceased, executed to the defendants and cross-complainants certain deeds and instruments in writing.” The third error assigned is that “the trial court erred in its 18th finding of fact in so far as it finds that Willis J. McGinnis, administrator with the will annexed of the estate of Thomas J. Bull, deceased, executed certain instruments.” ■ These three assignments of error raise the same questions for our consideration and are each based upon the contention of the appellants that neither the letters of administration, the oath of office or bond of administrator, or all together, show that said administrator was appointed and qualified as administrator with the will annexed, but expressly limit the powers of the administrator to those of an ordinary administrator. The record discloses that the Probate Court of Dona Ana County, February 7th, 1899, admitted the last will and testament of Thomas J. Bull, deceased, to probate, and as a part of said order, directed that “letters of administration with the will annexed do issue to the said Willis J. McGinnis and Benancia Padilla after first entering into bonds with two or more good and sufficient sureties in the sum of $31,000.00 conditioned Cor the faithful performance of said trust.” Three days later, McGinnis filed a bond in the sum of thirty-one thousand dollars, in which he was described as administrator, but which differed from the bond required of ordinary administrators in that it was conditioned that he “administer according to law all the moneys, goods, rights and credits of the said deceased, and the proceeds of all his real estate which may be sold for the payment of his debts.” The oath of McGinnis was not in the form required of ordinary administrators, or in full compliance with forms of oath required of other classes of administrators, but follows more closely the requirements of our statutes as to oath of administrator with the will annexed. Wo do not agree with appellants that the bond executed by McGinnis was in the form required of ordinary administrators, on the contrary, its form would indicate that an attempt was made to comply with the requirements of the statute (sec. 1944) and while the bond describes McGinnis as administrator instead of administrator with the will annexed, this was doubtless clue to a mistake, or omission, which appellants in good conscience cannot be permitted to avail themselves of. The approval of the bond by the probate court, within three days after the order of appointment, precludes any presumption of a renunciation of the appointment or intention on the part of McGinnis not to qualify under the terms of the order of his appointment. It lias been held in the case of Casoni, et al. v. Jerome, 58 N. Y. 815, that: “Where the authority of an executor is revoked, and an administrator, with the will annexed, is appointed, it is not essential to the validity of the bond to be given by him as such that his special character should be recited therein ; a bond in the ordinary form required of general administrators by the statute is valid and proper.” 1 Our statutes containing similar provisions to those of N. Y. upon which the foregoing opinion was based, we agree with the rule there laid down. The opinion further elucidates the rule in the following language: “It is true that her, special character as administratrix with the will annexed is not recited in the bond, but this was not essential to its validity. Whether she was a general or special administratrix, would have been disclosed by an examination of the order appointing her, and the bond must be held to refer to her acts and conduct in the actual character and relation to the estate which she held by virtue of her appointment.” 2 We are of the opinion that reference should be-made to the order of appointment for the purpose of determining the character and status of oue assuming to administer upon an estate. Tbe fact that in our jurisdiction no legal training or skill, is requisite as a qualification for the office of Probate-Judge, or Clerk, results in many clerical and other mistakes and makes tbe adoption of tbe rule, referred to, imperatively necessary. 3 We do not concede that the bond given by McGinnis was fatally defective, but are inclined to the opinion that the defect in the bond executed by the administrator with the will annexed, did not vitiate his appointment, nor invalidate his acts. Peebles v. Watt’s Admr., 9 Dana (Ky.) 102, 33 Am. Dec. 531; Moberly v. Johnson’s Exec., 78 Ky. 273. 4 We do not consider that the contention of appellants, that the letters of administration do not show that the administrator qualified as administrator with the will annexed, is meritorious. We are of the opinion that letters of administration are to be considered merely as credentials and not necessary where the order or record ■of the court show his authority to act. Hosey v. Brashear, 33 Am. Dec. 299. Burkhalter v. Ector, 25 Ga. 55. State v. Price, 21 Mo. 434. It is also urged that the oath did not describe Mc-'Ginnis as an administrator with the will annexed. While ■this is true, it is a purely technical objection which cannot be given serious consideration. For the reasons given, we are of the opinion that the ■first three assignments of error are not well taken and they are therefore overruled. The fourth assignment oE -error is that: “The court erred in its 3rd conclusion of law insofar ■as it found that the administrator properly resorted to and sold real estate belonging to said estate for the purpose •of realizing funds wherein to satisfy the claims against the estate of Thomas J. Bull, deceased, to which said con■clusion of law appellants duty excepted and now assign error as to the sales in question between appellants and appellees, upon the ground that it apjiears from the trial court’s said findings of fact that the administrator at the time of making said sales had not sold the -personal prop-arty of said estate, which appears from the inventory and approved claims and reports of the administrator, all as found by the court, in the findings of fact, to be sufficient to pay the debts of the estate; that the said sales were not lawfully made by said administrator, that they were made without an order of the District Court, and the said administrator could not sell said real estate under such circumstances without an order of the District Court.” The argument in support of this assignment of error is that the sale by the administrator, if he was authorized to exercise the power given to executors to sell real estate to pay debts, was nevertheless, without authority and void because the statute of New Mexico (sec. 2065) limits the power of the executor acting under a will containing power to sell real estate to pay debts, as well as the power of the District Court to order a sale, to cases wherein "it shall appear from the inventory and appraisement that the personal estate of the decedent is insufficient to discharge the just debts allowed against Ms or her estate and the legacies charged thereon.” We cannot agree with this contention of appellants, but interpret this section of the Compiled Laws of 1897 to mean that whenever, after inventory and appraisement, it shall appear that the personal estate is insufficient to discharge the debts allowed against the estate, etc., resort may be had to real estate in the manner provided, and that the fact of such insufficiency of assets quite properly may be made to appear by facts outside of the inventory and appraisement, and that the inventory and appraisement may be shown to be erroneous should it show a condition as contended for by appellants here, viz: an apparent sufficiency of personal assets, whereas an actual insufficiency existed. 5 We construe this section (2065) to provide for the action by the executor or administrator under a power' of sale contained in the will, and sec. 2066 to provide for sale of real estate arising where personal assets are insufficient to meet debts and legacies in those cases where no power is contained in the will, thereby supplementing the provisions of sec. 2065. In the latter contingency, proceedings in the District Court are necessary, and the authority of the executor or administrator is clearly limited and circumscribed. Under our interpretation of these statutes, we do not consider that an adjudication by the Probate Court as to the insufficiency of personal assets was necessary. We think that the Legislature has clearly shown an intention to vest in the District 'Courts the necessary jurisdiction in the matter of the sale of real estate of decedent’s where power of sale was not given to some designated person by a last will and testament of decedent. It does not appear from these sections that the Legislature had any intention to confer any such power .upon, the Probate Courts, and in our opinion it would be inconsistent with the apparent intention of the Legislature in this regard to so construe the acts referred to, as to vest in the Probate Court a vestige of such jurisdiction. Furthermore it is unreasonable to presume that the Legislature intended conferring upon the Probate Court the power of adjudication as to insufficiency of assets where no intention appears from reading either of the acts referred to, to confer such power upon the District Court, so far as the exercise by an executor or administrator of the power of sale conveyed bjr a last will and testament. It seems quite clear that the Legislature recognized the right of a decedent to designate some person (by last will), with authority to sell real estate, without hampering such individual by Court proceedings in either the Probate or District Courts. This leaves for our consideration the remaining point urged by appellants in connection with this fourth assignment of error, viz: that the sales made by this administrator with the will annexed, were not lawfully made-because not made under an order of the District Court, which contention is based upon the alleged fact that Mc-Ginnis was a general administrator instead of an administrator with the will annexed. We have disposed of this question by our holding that his authority may be discovered or ascertained by examining the order of appointment. For the reasons stated, we overrule the-fourth assignment of error. The fifth assignment of error is as follows: • “The court erred in its 7th conclusion of law, wherein it held that said McGinnis was in fact and in law administrator of the estate of Thomas J. Bull, deceased, with the will annexed, at the time he executed said deeds, and that the defendents therein named were entitled to the relief prayed for, because it was error to hold that said McGinnis was such administrator with the will annexed, because the letters of administration, oath of office and bond show, as a matter of law, that he was not appointed or that he qualified as administrator with the will annexed; and in holding that appellees were entitled to the relief prayed for in that said sales were made without an order of sale of the District Court, without an order of .confirmation of said court of said sales and because it did not appear from the inventory and appraisement and claims allowed and approved at the time each sale was made that the personal property was insufficient to pay the debts of said estate, and because each of said sales were at private sale and not at public sale, as required by statute, and without an order of the District Court authorizing a private sale of any of said lands.” The only new element in this assignment of error, not heretofore disposed of by this opinion, is the point that the sales of real estate were private and not public sales, which contention is based upon section 1960 of the Corn-Laws of 1897, which section is as follows: “The executor shall exercise all the authority conferred upon him by his appointment, and if it should be necessary, in order to carry out the desires of the testator, to sell a portion of the whole estate, he may dispose of the same at public sale, without being allowed to purchase, under penalty of the sale being declared null and void.” Appellants contend that the word “may” as used in the foregoing statute, should be construed as “shall,” and thereby limit the power of sale given by the last will and testament of decedent, and thus compel a public sale. Section 1960 approved February 12th, 1852, and in our opinion must be construed in connection with the later statutes enacted as a portion of chapter 29 of the S. L. 1884, appearing as sec. 2064 and 2065, C. L. 1897. Sec. 2064 is as follows: “Whenever any testator shall, by his last will, direct that his real estate, or any of it be sold, or otherwise disposed of, for the payment of his debts, or for any other purpose, and no executor be named therein; or if the executor named therein refuse such office, or be removed' or die, the administrator, with the will annexed, or ch bonis non, may sell, convey and dispose of such real estate, in accordance with the provisions of such will.” 6 We construe this last section to show a clear intention on the part of the Legislature to leave the disposal of real estate by last will and testament of decedent unhampered by court proceedings, and subject only to provisions expressed in the power of sale. Section 2065, supra, further enlarges the powers of an executor or administrator in those cases where power of sale is contained in the will, and gives to such officer the additional power to mortgage or lease, should such power be conferred by will. It is not for us to limit these acts of the Legislature, and the intention therein shown, in the manner contended for by the appellants. The general rule governing these matters has been laid down in Cyc., vol. 18, page 325, as follows: “An executor who is given a power of sale by the will, has as a rule, considerable discretion as to the manner and conduct thereof. While public auction sales are insisted on in a few states, the more general rule permits a private sale at the discretion of the executor, prudently and honestly exercised.” There is no contention in this case that McGinnis failed to exercise a sound discretion in the sale of the several tracts of real estate, or that his conduct was not both prudent and honest, and we therefore hold that the fifth assignment of error should be overruled. Finding no error in the record, and for the reasons given in this opinion, the appeal is dismissed and the judgment of the District Court affirmed, and it is so ordered.