Connor v. Paul

ELLISON, J. — This action is based on a contract of subscription. The judgment in the trial court was for the plaintiff. It appears that Thomas Connor in his lifetime contemplated the erection of a new hotel in the city of Joplin on the site of an old one. It was believed that the erection of such a hotel as he contemplated would greatly improve the city, and a number of citizens, this defendant among them, agreed to contribute towards the enterprise. Defendant subscribed one thousand dollars. Connor died and left a will in which he appointed five executors including William H. Phelps, and he directed that they be not required to give bond. Phelps [16] declined to serve and the remaining four, these plaintiffs, qualified and were permitted to do so by the probate court without giving bond, as provided in the will. Defendant now insists that plaintiffs are not capacitated to maintain this action on the ground of not havt ing given bond as provided by statute — his point being that notwithstanding the statute (section 12, Revised Statutes 1899) permits executors to act without bond when so provided in the will, yet since one of the executors in this instance refused to act, the exemption from giving bond did not apply. He suggests that the exemption was provided for all and that the testator may have been induced to exempt all by reason of his confidence in the business capacity of the one refusing. That statute reads: “When there are two or more persons appointed co-executors in any will, none shall have authority to act as such or intermeddle, except those who gave bond: Provided, that if more than one wish to qualify, they shall be required to give a joint bond: Provided, that in all cases where a testator, by his last will and testament provides for the appointment of an executor and requests that such executor shall not be required to give bond, the giving of the bond shall be then in the discretion of the probate court.” We have not been cited to a case supporting defendant’s point. That of Fairfax v. Fairfax’s Ex’r, 7 Gratt. 36, does not, for there' two executors were named by the testator to serve without bond. Afterwards a third was added by codicil without such exemption, and it was held that he should give bond. But no effect can be allowed to the point from the fact that these plaintiffs have duly qualified and are acting as such under the direction and letters of the probate court. Their capacity is not subject to collateral attack. [In re Estate of Davison, 100 Mo. App. 263; Riley v. McCord, 24 Mo. l. c. 269.] [17] The failure to give bond is not such au irregularity as would justify a collateral attack. • [Wiltsey v. Wiltsey, 135 Iowa 430; Ryan v. American Freehold Co., 96 Ga. 322.] Nor is failure to subscribe to an oath of office. [Gallagher v. Holland, 20 Nev. 164.] Defendant’s second point is equally unsound. It is substantially this: That the title to the site on which the hotel has been erected is in a corporation known as the Connor Realty Company, and that that company constructed the building. The contract of subscription was made with Connor as an individual and he or his execu.tors can maintain an action on it. [Simons v. Wittmann, 113 Mo. App. 357; Harrigan v. Welch, 49 Mo. App. 496.] The judgment avus manifestly for the right party and it is affirmed. All concur.