Moreland v. Lawrence

Berry, J. 1. Whether there was evidence to justify the referee in finding that the plaintiff was administrator of L. D. Smith, is the first of the main questions presented by this case. It appeared that, at the time of his death, Smith left estate to be administered in Houston county, and that he was either a resident of that county or not a resident of this state. In either event the probate court of Houston county had jurisdiction to appoint an administrator of his estate. Gen. St. c. 51, § 2. It further appeared that letters of administration upon his estate wore issued, by the probate court aforesaid, to the plaintiff. When it appears that a probate court has jurisdiction of the subject of the appointment of an administrator of the estate of a person deceased, the letters of administration issued by such court are, in a collateral proceeding, conclusive evidence of the-appointment of the person therein named as administrator. Emery v. Hildreth, 2 Gray, 228 ; Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S. 238. The probate records were properly received in evidence. The record of the letters of administration, independents of proof of prcliminaiy proceedings, was competent, upon the grounds above stated The record of the order of pub [87] lication of notice of the application for the appointment of an administrator, ( such record containing a recital that the widow of L. D. Smith had appeared before the judge of probate, representing that her husband had died intestate, having property in Houston comity, and asking that administration bo granted to the plaintiff,) and the record of the appointment of the plaintiff as administrator, upon the day named in the order of publication, and upon proof of the death of L. D. Smith, intestate, leaving property in Houston county, and the record of the fixing of the penalty of the administrator’s bond at §1,000, and of the receipt and filing of the bond, and of the taking the administration oath, were properly received by the referee, not as showing a complete compliance with all the requirements of statute touching the appointment of administrators, but as showing a compliance pro tanto, and to the extent of the matters stated in the record. So far as it went this evidence was corroborative of the letters of administration. Exhibit Gr was also properly received by the referee. It was the order of publication, specifying, with more particularity than the record before mentioned, the time and place of hearing, and the manner of the publication required. The affidavit attached to it was taken before the judge of probate on the day of the hearing of the application, and was properly received as part of the proceedings before him, and was evidence of proper publication, as far as it went, though it was not the printer’s or publisher’s affidavit prescribed by statute. The evidence showing that an administrator’s bond had been duly approved by the judge of probate, and by him filed in his office, and that, upon careful search there, it could not be found, was sufficient to lay a foundation for parol evidence of its contents. Thayer v. Barney, 12 Minn. 502. Upon the whole, then, we are of opinion that the referee’s finding that plaintiff was administrator of L. D. Smith was [88] justified by the evidence, and, though some of the testimony bearing upon that point may not have been strictly necessary, it was not incompetent, or in any material sense improper. 2. The second principal question presented in this case is whether the evidence justified the finding that Mrs. Smith’s assumed sale and transfer of the notes and mortgage were not authorized or ratified, and were therefore void. As there can.be no doubt that there was abundant testimony (if the referee believed it) having a reasonable tendency to sustain this finding, this question must, upon the authority of many decisions of this court, be answered in the affirmative. Humphrey v. Havens, 12 Minn. 298 ; Brown v. Gurney, 20 Minn. 527 ; Berleey v. Judd, 22 Minn. 287. 3. The notes involved in this action drew interest from date, at 5 per cent, per annum, but contained no stipulation as to interest after maturity. Under such circumstances it was proper to allow interest by way of damages at the rate of 7 per cent., after the maturity of the notes. Talcott v. Marston, 3 Minn. 339 ; Lash v. Lambert, 15 Minn. 416. 4. The execution of the mortgage which this action is brought to foreclose was attested by one witness only; but this defect was cured by Laws 1872, c. 39. To the acknowledgment, though it is not in the usual form as respects the statement of venue, we see no objection. 5. Upon the oral argument it ivas claimed that the referee erred in excluding evidence of general bad character and immoral conduct, offered for the purpose of impeaching a witness. It is settled in this state that, in impeaching a witness by attacking his character, the enquiry must be confined to his character for truth and veracity. Rudsill v. Slingerland, 18 Minn. 380. These are all the points made to which ive deem it necessary to advert. Order affirmed.