State ex rel. Betts v. Purdy

Public Administrator Executing a Will Colore Officii: liability op his sureties. A public administrator being named in a mil as executor, 'without giving bond as such, and without giving the notice required by Wag. Stat., p. 123, ? 8, assumed control of the estate devised and executed the powers conferred by the will. The probate court recognized his acts as those of the public administra- 'or. In a suit by a distributee to recover a share of the estate; Held, that he was chargeable as public administrator and not as executor or private administrator with the will annexed, and his sureties were liable accordingly.

Appeal from Audrcdn Circuit Court. — IIon. Gilchrist Porter, Judge, 1. The fact that Purdy called himself executor occasionally, is of no moment, as he never qualified; it is no more than if he had been and called himself a justice of the peace, in connection with public administrator, only it is more easily explainable, being named executor in the will, and, in fact, if administering as public administrator, as charged, he was bound to execute the will, and, so far, was executor in fact. 2. The filing of notice of taking charge of an estate is not indispensable to the validity of the administration; and in this case would be but an additional item of evidence as to the capacity in which he administered. 1 Wag. Stat., Sec. 11, p. 122; Sec. 14, p. 123; Adams v. Larrimore, 51 Mo. 131. 3. The question of Purdy’s right to administer in this particular case, is not the test of the liability of the sureties. Did he, in fact, or did he profess or assume to administer as public administrator? Of these facts, the papers and records of his administration are the legitimate evidence. Rollins v. State, 13 Mo. 437 ; State v. Powell, 44 Mo. 436; State v. Moore, 19 Mo. 369; Miss. Co. v. Jackson, 51 Mo. 23. 4. A public administrator must alone decide whether he ought to take charge of an estate in all cases, except when ordered to do so by the proper court. And when he does so under a misconception of or in willful disregard of his duty, such mistake or misconduct comes within the scope and purpose of the bond required by statute. State v. Farmer, 21 Mo. 160 ; State v. Shacklett, 37 Mo. 280. 5. Appellants wore not required, in order to make out a ease, to show that Purdy had the right to administer the estate as public administrator, although there was evidence tending to show it. It was shown that he did not qualify as executor, nor as private administrator of the estate, and the evidence showed that he was professedly in possession of the estate as public administrator, and the presumption of law is, that he was rightfully in possession, rather than wrongfully, as a trespasser. 1 Greenlf. Ev., § 40; 1 Phil. Ev. (4th Am. Ed.) p. 604, note 177, subd. 10; Stagg v. Green, 47 Mo. 500; Phillips v. Sieioart, 59 Mo. 491; Lamb v. Helm, 56 Mo. 420. 1. As public administrator, Purdy was only authorized to take charge of the estate in one of the cases specifically designated by the statute. (Gen. Stat. of 1865, p. 516, Sec. 8.) If he took possession in any other way it was wrongful, and his securities are not bound. 2. The papers filed by Purdy, during the time he was pretending to settle up the estate, are not competent as admissions of the principal, to bind the seemfities, because they did not constitute part of the res gestae. To make them competent for that purpose it was necessary to show, first, that the estate of Carbine was properly and legally in the possession of Purdy, as public administrator, and that what he said and did in reference to it was strictly in, the line of his official duties. Northrup v. Miss. Valley Ins. Go., 47 Mo. 435; Blair v. Per. Ins. Go., 10’ Mo. 559; Western Boat. Benev. Ass. v. Kribben, 48 Mo. 37. 3. The undertaking of the security is to be strictly construed, and his liability cannot be extended by implication beyond the terms of his contract. Purdy’s settlements do not amount to estoppels as against his securities, and if the court made settlement! with him or gave any sort of recognition of his right or authority to take charge of Carbine’s estate in his capacity of public administrator, still his securities would not be bound. Blair v. Per. Ins. Co., 10 Mo. 559; Nolley v. Callaway Co. Court., 11 Mo. 447. The will gave Purdy authority to sell, he had no authority or power to do so as public administrator, and although in the deeds in evidence, he recites both sources of authority, it is clear that he did not have and could not have had any authority derived from his public administratorship to sell the lands without an order of the court for so doing, together with a report of sale and approval. Then if any legal sale whatever was made, it was under the power in the will which he recites and as executor. Almost all the money which came into his hands, was derived from the sale of lands, and if these sales stand at all, it must be upon the power in the will, and because Purdy, the executor and donee thereof, acted as executor in this administration, for he could not have acted legally as executor in selling the lands, and as public administrator in everything else connected with the estate. If this money was ever rightfully in Purdy’s hands at all, it was because he did not administer as public administrator but as executor. If he acted under his authority as public administrator, then there was no valid sale of the lands; the heirs and distributees can recover the real estate, and the purchasers will be the sufferers and entitled to this money.