24 Mo. 16 | Mo. | 1856
delivered tbe opinion of the court.
This is an action in the nature of a suit in ejectment brought by plaintiffs, as trustees for Martha J. Sweringen, to recover possession of a lot in the city of St. Louis. The lot was sold by the public administrator of St. Louis county as property belonging to the estate of Christopher P. Schewe, deceased, and the plaintiffs derive their title under the purchaser of the estate at the sale.
It seems from the record that the lot was deeded to Schewe by "Wm. Chambers, Wm. Christy and Thomas Wright, in 1817 ; that letters of administration were taken out on the estate of Schewe in June, 1850, and the sale was made, and in December, 1851, was approved ; that Salisbury became the purchaser at the administrator’s sale, and that he afterwards deeded the lot in controversy to Parrar and Sweringen, the plaintiffs, as trustees for Mrs. Sweringen. It appears that Schewe was a foreigner, a German, by birth, and was in 1817 a very old man ; that shortly after the winter of 1819 he (Schewe) left St. Louis for Florida, as was said, and that he has never been heard of since. There was no personal estate — no other property of Schewe than the lot — and there were no debts due by the estate or to the estate. The administration created the debts by making costs. There were none before it commenced.
We do not consider it a matter of much importance as to the instructions given — whether they were correct or not; as the judgment below must be affirmed on other grounds, which entirely destroy the plaintiffs’ right to recover. The legal presumption of Schewe’s death commences sometime in 1827 or 1828. At his death, he being a foreigner, his lot would instantly and of necessity, (as the freehold can not be kept in abeyance,) without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent. (2 Kent’s Com. 54.) Chancellor Kent says : “ Though an alien may purchase land, or take it by devise, yet he is exposed to the danger of being divested of the fee, and of having his lands forfeited to the state, upon an inquest of office found ; and if he does, before any such proceeding be had, we have seen that the inheritance can not descend, but escheats of course.” (2 Kent’s Com. 61.) Our act of 6th December, 1820, permitted resident aliens in any of the United States or territories, who shall have made a declaration of their intention of becoming citizens of the United States by taking the necessary oath in due form of law, to inherit, and to transmit the inheritance of real estate within this state, and to acquire and hold the same by descent or purchase, and to alienate the same, and to have the same rights and incur the like duties, in relation thereto, as if they were citizens of the United States. The intention to become citizens and the preparatory oath are necessary to this privilege. Here is an old man — a foreigner ; there
The administrator has no power over the real estate, except so far as to hold it for the payment of the debts of the deceased ; and when there are no debts, the land descends to the heirs, or escheats to the state ; and it is not in the power of the administrator to hinder this legally; nor can the Probate Court direct or order a sale of real estate for costs accrued after the administration begins, and only because it did begin. Such costs are not debts due by the deceased, nor debts at the time of the death of the intestate.
Here, a man is unheard of for thirty years — was an old man when he left — -no debts left behind him — no debts ever brought forward or heard of as due and owing by him — no proceeding by attaching creditors to reach his property. Thirty years pass away; a new generation has come forward, and, by its sharp-sighted, keen, penetrating benevolence, undertakes to take up and manage the estate of him, who has probably ceased to think about it for a quarter of a century. There is no case for an administration, and the public administrator should have scouted the idea of interfering with it.
“Where there are not sufficient personal estate and effects charged with the payment of the debts of any testator or intestate, it shall be the duty of the executor or administrator to make application to the court of probate of the proper county in which his letters were granted, by petition, setting forth the facts, and praying that an order or decree may be made for the sale of any real estate of the testator or intestate, the sale of which is not provided for by his will, or so much thereof as Shall be necessary for the payment of the debts of the deceased,” &c. (R. C. 1825, p. 106.) “ If any person die and not
From the record of the Probate Court, used in this case, it is manifest that there were no debts. Schewe has not been seen or heard of here for thirty years; his lot, in this case, was sold to pay the costs of administration. We can not shut our eyes to the fact that the administration was begun for the purpose of selling the lot; not for the purpose of paying his debts, for there were none; not to save his estate for his heirs, for there were none ; but to get hold of his real estate by means seemingly consistent with law ; and therefore the administration began. It made eosts, and then sold the property, the lot, to pay them ! Now, where the proceedings of the probate courts, in decreeing the sales of real estate, are substan
I presume that this is the first case where, under our law, real estate has ever been sold for the costs of administration— where there were no debts outstanding against the estate, and the administration was taken out for the purpose of reaching and selling such real estate ; for, unless this was the object in this administration, there is none other that we can perceive. It is the duty of the courts, then, to put a check to this matter when first brought to their notice. Therefore, without considering the instructions given by the court below, we shall affirm the judgment;
