Lappin v. Mumford

14 Kan. 9 | Kan. | 1874

The opinion of the court was delivered by

Brewer, J.:

1. sale Dyaadebt or claim, 2. “Personal ciules notes11' claims,etc. 3. Power of sale, No statutory restriction. 4. Order of probate court.a 5. Appraised value; sale ect. 6. Presumption; wittipiawlce The question in- this case was raised on demurrer, and the substantial facts are these: One James R. Herd had in his lifetime a claim against the defendant for services' performed in the location of a land-certificate. After his death, the claim not having been paid, the administrator de bonis non of his estate, by order of the probate court, sold and assigned it to this plaintiff. In reference to this sale and assignment two propositions are asserted by counsel: First, that the probate court had no power to order, and the administrator none to make, such a sale or assignment; and second, that if the power existed it was not so exercised as to accomplish a valid transfer. In reference to the first proposition, we think the court had the power to order the sale of such a claim. At common law the full legal title to the personal estate of a decedent was vested in his administrator, and such administrator could dispose of it, passing a good title as freely and fully as the decedent himself could in his lifetime. His indorsement transferred the title to negotiable paper: Reddick v. Moon, 65 N. Car., 382; Thomas v. Reister, 3 Ind., 369; Hamrick v. Craven, 39 Ind., 241. In Dayton on Surrogates, at page 259, it is said: “But generally speaking an executor or administrator in his own lifetime may dispose of and alien the assets of the testator. He has absolute power over them for that purpose, and they cannot be followed by the creditors of the deceased.” See also same volume, pages 307 and 310; Williams on Exec’rs, 562; Anderson, Adm’r, v. Gregg, 44 Miss., 170; Booyer v. Hodes, 45 Miss., 78; Harth v. Haddlestone, 2 Bay, 321. The provisions of our statutes, and similar ones in other states, prescribing the manner and conditions of sale are to be regarded rather as restrictions upon this otherwise absolute power than as original grants of power. The administrator, who, independent of such provisions- could sell when he pleased, and upon such terms as suited him, responsible to the creditors and heirs only for reasonable fidelity in his trust, must now proceed in accordance with the regulations of the statute. Whatever an ministrator can do without an order, the court has power to order him to do. He has power, and it is his duty, to seh at public sale the personal property; and ^g £erm? “personal property,” which, according to its ordinary significance, as well as its statutory definition, (Gen. Stat., p. 999, clause 9th,) includes such a claim as the one in question, is expressly'' in the section requiring him to sell, made to .include such a claim. “The whole of the personal property belonging to the estate which is liable to the payment of debts and is assets in his hands to be administered,” is the language used; (Executors Act, § 69.) It is true, bonds, notes, bills and accounts are not ordinarily sold, and in most cases ought not to be. They are regarded as personal property, in a sort of intermediate condition between goods and chattels, and money, the standard of value; as it were, the former in process of reduction to the latter. Hence, the interests of the estate are generally promoted by the collection rather than the sale of such property. But nevertheless they are personal property, and as , . . , __ - „ , such subject to sale. JNor does §63, cited by counsel, remove this power of sale. The purpose of that section is to enable the administrator to obtain proper credit for doubtful claims without subjecting the estate to expense. It permits the court to authorize the administrator to compromise certain doubtful claims, or file them in court for the benefit of such heirs, devisees or creditors as will sue for them, and declares that such order of the court shall be a sufficient voucher. Granting authority to compromise, does not take away the power to. sell. In regard to the second question we do not think it is fairly before us. We think the allegations of the petition are sufficient as against a demurrer. It alleges that the administrator was duly authorized to sell, by an order of the probate court; that in pursuance thereof he sold, and with the approval of such court executed and delivered a written assignment of'such claim. The order of the court and the assignment are attached to the pleading. The first, after showing that a petition therefor had been filed, orders the administrator to sell “at private sale for cash in hand, and for the highest and best sum in his opinion obtainable for the same.” The second is simply an assignment of the claim, declaring that it was made in pursuance of the order of the probate court. The order does not direct the administrator to sell for not less than three-fourths the appraised value, and the assignment does not show for what sum the sale was made, nor that it was for not less than three-fourths of such value. But we think it is unnecessary that this should appear either in the order or the assignment. The statute reads, “The probate court may order the executor or administrator to dispose of said personal property at private sale, at not less than three-fourths of its appraised value.” (Gen. Stat., p. 446, § 71.) The statute fixes the lowest limit at which personal property may be sold at private sale, viz., three-fourths the appraised value. It authorizes the court to fix a higher limit. In ordering a private sale it may require four-fifths, or even the entire appraised value, or more. If the order is silent, the law fixes the limit; for this section must be understood, not as specifying the language of the order, and leaving all discretion as to the amount above the statutory limit to the administrator, but rather as limiting the power of the court, and presbribing the amount below which the court may not order a sale. Here the order is silent. In the absence of any showing to the contrary we must presume that both court and administrator kept within the requirements of the law, and that the sale was made for not less than three-fourths the appraised value. If it should hereafter appear that no appraisement was made, or that the sale was for less than three-fourths of the appraised value, it will be time enough then to consider the effect of such omission.

The judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer.

All the Justices concurring.