Barwick v. Rackley

B. F. SAFFOLD, J. The appellees sued the appellant for the conversion of certain property belonging to the estate of which he was the administrator, claiming that it was exempt from administration for their use as the family of the intestate. He defended on the ground that the sale of the articles was made at the request of the widow, and that he had accounted to her and the infant distributee for the proceeds. The judgment was for the plaintiffs. The articles of personal property enumerated in section 2061 of Revised Code, are not subject to administration when the deceased leaves a widow, or a child or children under the age of twenty-one years, as was the case in this instance, but they belong to the family in common for their use and consumption. They are subject to division, however, if any member should leave the family. — Rev. Code, § 2062. If the family should not need them, it would be highly proper for the administrator to take charge of them, and sell them for the use of those entitled to them. In such ease he would be chargeable with their value as administrator, because as far as he is, or may be, concerned about them, they are the property of the estate. His accountability would be to those for whose use they were intended. If he made a disposition of them unauthorized by the parties, or by the circumstances, he would be liable for a conversion. If Mrs. Rackley consented to the sale of the property in consideration of an agreement with the administrator that she should have one-half of the proceeds of the sale of tbe real and personal property of the estate, or of any greater interest than she was by law entitled to have, such an agreement was void, because beyond the power of the parties to make. There was no consent. But if the sale was made at her request, or by her permission, not based [410] on any invalid consideration, she is estopped by her consent. There is no law prohibiting the widow, when she is the head of the family, from selling the exempted property. But if she is not the mother of the minor child or children, as in this case, and does not propose to keep the family together,- she can only sell her own interest. In either case her right to .sell may be exercised, whether the property has been set apart or not. The guardian of a minor child would have no right to sell his proportion of the excepted property unless the child was withdrawn from the family, and if he did so, he would be liable as for a conversion. That portion- of the charge of the court which was excepted to was erroneous. The first three charges asked by the defendant ought to have been given, but the fourth was properly refused. The objection to the introduction of the inventory and sale return of the defendant as administrator, was correctly overruled. They gave evidence touching many things necessary to be proved by the plaintiffs, such as the existence of the articles, the ownership of them, some indication of their value, the disposition made of them, and by whom, &c. — admissions of the defendant, no matter under what circumstances made. The depositions of Martha Barwick and Susan Lisenby ought not to have been excluded. They did say they heard all the conversation at a particular time, though not all of the many conversations on the subject. It would be difficult for a witness to remember all that he had heard in any conversation. It was not an objection to its competency that this testimony tended to defeat the right of one of the plaintiffs to recover. The judgment is reversed, and the cause remanded.