Frye v. Kimball

RylaND, Judge, delivered the opinion of the court. From the preceding statement, it will be seen that in this cause, the main question depends upon the construction of the act concerning executors andadministrators, passed by the legislature of Missouri, and approved February 21st, 1825, which was to take effect from and after the fourth day of July, 1825. The third section of this act declares, ££ that no person shall act as executor or administrator, unless he be twenty-one years of age, and upwards, and of sound mind; nor shall — 20 — any married woman act as executrix or administratrix; nor shall the executor of an executor, in consequence thereof, be executor to the first executor.” The fifteenth section declares, “that where any femme sole executrix or administratrix shall marry, her husband shall not thereby acquire any interest in the effects of her testator or intestate, nor shall the administration thereof devolve on him ; but the marriage shall operate as an extinguishment of her powers, and her letters shall be revolted and repealed.” Now, in this case, the administratrix was married before the passage of the law, and the law itself had no effect, until the fourth of July, 1825. The thirteenth article of the State constitution, section 17, declares, that “no ex post facto law, no law impairing the obligation of contracts, or retrospective in its operation, shall be passed by the legislature.” Now, in order to mate this “ act concerning executors and administrators” operate upon the marriage of the adminis-tratrix, in this case, it must necessarily have a retrospective action, which, we have seen, is plainly forbidden. By the plain and obvious terms .of the act, its whole tenor and scope directly and distinctly point to future actions. The last clause of the act itself postpones the taking of effect, until several months shall elapse. “ No person shall act,” &c., “ where any femme sole executrix or administratrix shall marry,” &c., all point to the future. Now, although the marriage of a femme sole executrix, after taking out the letters, and before the passage of this law, might afford a sufficient reason for the action of the Probate Court, after the law went into effect, to take steps to revoke and annul the letters, yet, until such action was had by the Probate Court, and an order made revoking them, we consider that such executrix still continues to be de jure and de facto executrix. So, likewise, with an administratrix. — 21 — We have not the least doubt that the act of 1825 did not reach this administration in this point. It might have been a sufficient cause for the Probate Court to have taken action and revoked the letters of administration; but until such action was had, she was still the administratrix. The Probate Court was a court of record, and had general and original jurisdiction over the subject of estates, wills, executors and administrators ; and we are inclined to suffer its acts to have full weight. We will not disturb the title to real property, acquired under the sales made in pursuance of the orders of the court, and we will not look with a scrutinizing eye into the proceedings of such courts, to find defects, in order to set aside sales of real estates, ordered and sanctioned by such courts. The second application was but a continuation of the first, for sale of real estate to pay debts, and the Court of Probate having granted an order for such sale, and afterwards approved the acts of the administratrix and her husband, in making and conducting such sale, we feel disposed to let the sale stand unshaken by us. I am, therefore, for affirming the judgment. NaptoN, Judge, concurred in the above. Bieoh, Judge. After taking into view all the facts and circumstances of this case, it is deemed unnecessary to go further in reference to the main point in controversy, than to express the opinion, that the cotemporaneous construction which seems to have been given to the act of 1825, was at least sufficiently reasonable to demand for it, for all the purposes of this case, the recognition and confirmation of this court. That it was generally construed as not reaching the case of an ad-ministratrix, who had married before its passage, may be sufficiently inferred (in the absence of any thing to the contrary,) from the facts imported by the record before us, disclosing not merely the acts of the court, in recognition of her continued authority, but the apparent acquiescence of a number of creditors of the estate, and the consequent inferential concurrence — 22 — of the bar of that period. These creditors, it is inferred from the statement of one of the counsel for tbe appellants, either received nothing from the sale of the land in question, or, if they did, it was from the securities of the administratrix. 3f the former, and the sale had not been then regarded as valid, it would seem that some one of them at least would have been found to cotemp or aneously dispute the validity of the continuing administration, and by urging then, as now, the invalidity of the sale, have sought the appointment of a new and proper administrator, together with a resale of the property, and an application of the proceeds to the payment of their demands. If the latter, as the securities could only be liable, upon the assumption that the administration was legally continued, the implied acquiescence of one of the oldest and soundest lawyers, who then adorned and yet adorns the bar of this court, (and who was one of the sureties in the bond,) is but additional persuasive testimony that the construction of the court was acquiesced in by the profession. In any point of view, therefore, which now occurs to us, the presumption is a fair one, that the proceedings and sale in question were had and made under such a permissible cotemporary construction of the law, as reconciled the most enlightened minds and the most adverse interests of that day — a generation or more' ago ; so that it may well be forborne, at this distance of time, and in a case like the present, to discuss, as an original proposition, a question, upon the cotemp or aneous adjudication of which, rights have been at least honestly and fairly acquired, and the divestiture of which, in cases like the present, would be an emphatic private wrong. So far, therefore, as the right of administration is involved, it will not be further here considered. ' Resulting from the same considerations, a certain degree of forbearance may also be extended to what might otherwise challenge a more critical consideration, namely, the technical ambiguities, inaccuracies and omissions evolved by the record of the Probate and County Courts. It has been but too well — 23 — suggested, that were the estates of the country, which have been honestly and openly derived under the sales of administrators, to be subjected to the formal and technical tests which are here urged by the counsel for the appellants, a harvest of litigation, ending in a sea of ruin and of wrong, would be the inevitable consequence. This court, except to palpably help out the ends of every day justice, will, perhaps, increase in the reluctance it has heretofore manifested, to insist upon greater precision and formality in the proceedings of the inferior tribunals, than was reasonably to be anticipated in and from the manner of their institution and organization — for such they deem to be the spirit and meaning of the duty, in that respect, devolved upon them. The record in question sufficiently discloses at least the most prominent and important facts — namely, that it was necessary to sell the land (or a portion of it) in order to pay the debts of the deceased, and that being so sold, it brought a greater sum than that at which it had been regularly appraised. Whether, at that early day, and having reference to the condition of the little lot of land in question, it was most judicious to order it to be divided and sold in parcels, or to be sold altogether, as it was, was then, as it would now be, a question for the sound discretion of the County Court, which we perceive no sufficient evidence to doubt was properly enough exercised in the case before us. The lot seems to have had a house upon it, and for that reason, as well as for others, which may be readily imagined, it may have been deemed best for the estate to sell it altogether. At all events, no sufficient case is made upon the record, to justify this court, at this day, in annulling the sale upon that score. As to the alleged invalidity of the deed, because of a defect in the certificate of acknowledgment, it is deemed sufficient to remark, that as this suit is substantially between original parties, and as the record discloses the fact that the land was sold by persons representing the ancestor of the one, and paid for by the other, those who would now stand upon the original — 24 — seisin of tbe first, should not be allowed, in order to make that paramount, to take advantage of an omission, which the law would rather ascribe to his administrators as a fault than to his heirs as a merit. Similar reasoning might, perhaps, be deemed sufficient as to the apparent incongruity between the report and confirmation of the sale to one of the Lindells and the subsequent execution of the deed to both of them ; but were it even otherwise, both reason and authority seem sufficiently conclusive, that such a deed is not, therefore, null, but that it should and will operate in favor of such of the grantees as it ought to have been made to, or such an one as can take under it; and as in this action, the recovery of the plaintiff is defeated by showing title in any other person, it would seem that in either point of view, the point in question was unavailable to the plaintiffs. Upon the whole case, therefore, believing as we do, from the general and special considerations to which we have adverted, that the jus possessionis attaches to the defendant, instead of the plaintiffs, the judgment of the Circuit Court is affirmed.