State ex rel. Moore v. Price

Leonard, Judge, delivered the opinion of the court. The only point relied upon in argument for tbe reversal of "this judgment, is tbe alleged variance between tbe allegation and the proof, in reference to tbe representative character of Moore & Moore, for whose use tbe suit is brought. Tbe allegation is, that they are tbe administrators de bonis non of Jesse Renfro, deceased, and their letters, given in evidence, are general, constituting them administrators of the deceased, without any limitation as to tbe effects to be administered. Martin was tbe original administrator, and, of course, tbe subsequent grant of a general administration could only have effect as an authority to administer tbe unadministered effects ; in other words, at tbe very utmost, it could only be in point of •legal effect an administration de bonis non, no matter how .general tbe words might be. Tbe county court, when they made the grant, could confer no other authority, and must bold the letters utterly void, or give them tbe limited effect indicated. Eor tbe purpose of upholding tbe proceedings of tbe county court, we may look to tbe facts existing at tbe time, and'give effect to their letters, to tbo extent of their authority., and stop there. It may be likened to tbe common case of one having power to act, and exceeding bis authority, and yet tbe •act done is valid to tbe extent of tbe power. Again, tbe order of tbe county court is a sufficient appointment, without any formal letters, if tbe party give the bond and take tbe oath required by law, (Lane’s adm'r v. Clark's adm’r, 1 Mo. Rep. 657; Carroll’s adm’r v. Corn, 1 Mo. Rep. 131; and the remarks of Tompkins, Judge, in refer [436] ence to this case, in Carpenter v. The State, 8 Mo. Rep. 295.) Here-, the order read in evidence appointed these plaintiffs administrators'ole bonis* non, and the clerk committed the error in drawing np the formal letters'. The judgment is affirmed ; Judge Scott not sitting...