State ex rel. Betts v. Purdy

Napton, J. This action is against Purdy, public administrator of Audrain county, and his securities, upon an order of the probate court to pay over a legacy in the will of Francis Carbine. The testator died in Audrain county in 1866, where he had lived for eight or ten years. Tie was an unmarried man, without relatives in this State, and resided in the house of a friend until his death. His personal estate consisted of but a few dollars in money, a small library and his clothing — altogether estimated at less than two hundred dollars. He had, however, a considera [93] ble real estate, and, of his will devising this, he made Purdy, public administrator, his executor. He directed his lands to be sold, and their proceeds to he distributed in certain proportions among his devisees, of whom the plaintiff, his half sister, was one. An order was made by the probate court upon Purdy to pay over this sum, and, on his failure to do so, this suit was brought against his sureties on the bond as public administrator. The only question is, whether these securities are liable for their principal’s defalcations in the management of this- estate. This is a question of law, depending on the construction to be given to the record of the probate court. The circuit court decided, on the production of this record, that the securities were not liable. Our opinion is that they are. Purdy calls himself, in his settlements with the probate court by various designations, public administrator, executor, administrator with the will annexed, and sometimes simply administrator. "We think this of no importance. The question is in which capacity did the court recognize him, and in what capacity only could he act. That he did not qualify as executor is conceded. He took out no letters testamentary, and gave no bond. That he did not act as private administrator with the will annexed, is equally clear, for he applied for no such appointment, and gave no bond as such. Hnder the 8th section of our statute, five cases are enumerated in which the public administrator may assume charge of an estate, without the interposition of the probate court. In each of these eases he is left to decide in the first instance, whether his duties require him to act. He may be mistaken in his construction of this provision, and any one interested, in the event that his conclusion is wrong, may procure his removal, but unless this is done, and whilst he is acting colore officii, his securities are responsible. A public administrator, when he takes charge of an estate where there is a will, is invested with the same [94] powers, and assumes the same duties as the executor or a private administrator with the Avill annexed. Purdy, it appears from the record in this case, exercised the powers confided to the executor in regard to the sale of lands. He was recognized by the probate court as administrator Avith the will annexed, and of course bound to conform to its provisions. The fact that Purdy never gave the notice required by the statute, to be given by public administrator when he takes charge of an estate under the 8th section, cannot relieve him or his securities from responsibility. An officer, who exceeds his authority or disregards his duty, is nevertheless responsible, if he acts under color of his office. Miss. County v. Jackson, 51 Mo. 25 ; Rollins v. The State, 18 Mo. 437. So even where an administrator has no power to sell, and he does sell and fails to account for the proceeds, his securities are responsible. State to use of Peppler v. Scholl, 47 Mo. 84; Gamble v. Gibson, 59 Mo. 594. The record in this case clearly shoAvs that the probate court recognized Purdy as administrator of the estate, under the will, by virtue of his public office. Indeed there was no other capacity in which he could act, Avithout giving bond. Our statute says that the sale and conveyance of real estate under a will shall be made by the acting executor or administrator with the will annexed, if no other person be appointed by the will for that purpose, or if such person fail or refuse to perform such trust. Purdy never applied to the probate court for leave to sell, but evidently assumed that as he had been named executor in his official capacity of public administrator, and had given bond as such, he was authorized to proceed without additional bond. Whether he was mistaken in this, is not material. All his acts were in the capacity of publi® administrator, and were only recognized by the court as acting in that capacity. Judgment reversed and cause remanded. Reversed.