23 Minn. 84 | Minn. | 1876
1. Whether there was evidence to justify the referee in finding that the plaintiff was administrator of L. D. Smith, is the first of the main questions presented by this case. It appeared that, at the time of his death, Smith left estate to be administered in Houston county, and that he was either a resident of that county or not a resident of this state. In either event the probate court of Houston county had jurisdiction to appoint an administrator of his estate. Gen. St. c. 51, § 2. It further appeared that letters of administration upon his estate wore issued, by the probate court aforesaid, to the plaintiff. When it appears that a probate court has jurisdiction of the subject of the appointment of an administrator of the estate of a person deceased, the letters of administration issued by such court are, in a collateral proceeding, conclusive evidence of the-appointment of the person therein named as administrator. Emery v. Hildreth, 2 Gray, 228 ; Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S. 238.
The probate records were properly received in evidence. The record of the letters of administration, independents of proof of prcliminaiy proceedings, was competent, upon the grounds above stated The record of the order of pub
Exhibit Gr was also properly received by the referee. It was the order of publication, specifying, with more particularity than the record before mentioned, the time and place of hearing, and the manner of the publication required. The affidavit attached to it was taken before the judge of probate on the day of the hearing of the application, and was properly received as part of the proceedings before him, and was evidence of proper publication, as far as it went, though it was not the printer’s or publisher’s affidavit prescribed by statute.
The evidence showing that an administrator’s bond had been duly approved by the judge of probate, and by him filed in his office, and that, upon careful search there, it could not be found, was sufficient to lay a foundation for parol evidence of its contents. Thayer v. Barney, 12 Minn. 502.
Upon the whole, then, we are of opinion that the referee’s finding that plaintiff was administrator of L. D. Smith was
2. The second principal question presented in this case is whether the evidence justified the finding that Mrs. Smith’s assumed sale and transfer of the notes and mortgage were not authorized or ratified, and were therefore void. As there can.be no doubt that there was abundant testimony (if the referee believed it) having a reasonable tendency to sustain this finding, this question must, upon the authority of many decisions of this court, be answered in the affirmative. Humphrey v. Havens, 12 Minn. 298 ; Brown v. Gurney, 20 Minn. 527 ; Berleey v. Judd, 22 Minn. 287.
3. The notes involved in this action drew interest from date, at 5 per cent, per annum, but contained no stipulation as to interest after maturity. Under such circumstances it was proper to allow interest by way of damages at the rate of 7 per cent., after the maturity of the notes. Talcott v. Marston, 3 Minn. 339 ; Lash v. Lambert, 15 Minn. 416.
4. The execution of the mortgage which this action is brought to foreclose was attested by one witness only; but this defect was cured by Laws 1872, c. 39. To the acknowledgment, though it is not in the usual form as respects the statement of venue, we see no objection.
5. Upon the oral argument it ivas claimed that the referee erred in excluding evidence of general bad character and immoral conduct, offered for the purpose of impeaching a witness. It is settled in this state that, in impeaching a witness by attacking his character, the enquiry must be confined to his character for truth and veracity. Rudsill v. Slingerland, 18 Minn. 380.
These are all the points made to which ive deem it necessary to advert.
Order affirmed.