44 Mo. 254 | Mo. | 1869
delivered the opinion of the court.
It appears from the record that Evalina Watts was administratrix, and William C. Boon was administrator, of the estate of Benjamin Watts, deceased, in Howard county, in this State, and that as such they gave bond, according to law, providing for their faithful administration. Subsequently an act was passed by the Legislature, approved Fehruary 9, 1857 (Sess. Acts 1857, p, 190), authorizing the said Evalina Watts and William C. Boon to sell all the real estate belonging to the deceased Watts. The act is entitled “ an act for the benefit of the heirs of Benjamin Watts, deceased.” The first section declares that “Evalina Watts, administratrix, and William C. Boon, administrator, of the estate of Benjamin Watts, deceased, of Howard county, are hereby authorized and empowered to sell and convey all the real estate belonging to said Benjamin Watts at the time of his death, lying in the said county of Howard.” Section 2 requires that before sale the real estate shall be appraised by three disinterested householders of the county, to be appointed by the County Court; and provides for securing the purchase money if the same is sold on credit, and prohibits the .sale being made at less than the appraised value. The third section delegates to the administrators power to divide the property and sell in lots, at their discretion. By section 4, the administratrix and administrator are required to make a full report of their proceedings, under oath, to the County Court; and, if the court approve their proceedings, they are then directed to make to the purchaser a deed, upon full payment of the purchase money,
The Circuit Court held that they were not responsible, and this ruling was approved in the District Court. The case must rest upon the construction placed upon the act of 1857. If the act be so construed as to confer upon the administrators of B. Watts, deceased, the power to sell the real estate in their official capacity as administrators, then the liability of the sureties is unquestioned. If, however, it conferred upon them a mere naked statutory power, giving them power to sell simply as individuals, it amounted to a personal trust, and the act of one would not hold the securities. By the statute law of this State, if there be more than one executor or administrator of an estate, and the letters of part of them be revoked or surrendered, or a part die, those who remain shall discharge all the duties required by law respecting the estate. And where the sole administration devolves on one administrator, in consequence of the death or other disability of a co-administrator, the law contemplated that state of things, and the obligation of the bond will not be impaired, but the securities will be held liable. (Dobyns v. McGovern, 15 Mo. 662.)
But, as a general proposition, where a statute gives a power to several persons to do anything requiring discretion or an exorcise of judgment, all must meet and confer. (Wood v. Phelps
In a deed where there was a power of revocation to be exercised by two persons, one of them died without exercising it; and it was held that the remaining one could not act for himself, and that the power of revocation was at air end. ( Montefiore v. Browne, 7 H. L. Cas. 241.) However, where the power is to several persons having a trust capacity or an office, in its nature like that of the executors of a will — susceptible of survivorship— and any of them die, the power will survive, unless it is given to them nominatim, as to the individuals by name. In this latter case the power would not survive unless it was coupled with an interest in the donees of the power. (Co. Lit. 113 a., Hargrave’s n. 146; Sto. Eq. Juris. § 1062; Tainter v. Clark, 13 Met. 220 ; Peter v. Beverley, 10 Pet. 564; 1 Sugd. Pow. 144-6.)
We must determine whether the power to sell the real estate of B. Watts, deceased, was given by the Legislature to E. Watts and Boon in their administrative capacity, or whether they were donees of a naked power, unconnected with their duties as administrators. The first section of the act names them as administratrix and administrator, and that is really the only thing that has the semblance of connecting them officially with the new powers delegated. They had already administered on the estate in the regular line of administration. The new and extraordinary powers granted by the legislative enactment were not necessary to perform any duty touching their powers as administrators. The law made ample provision for the sale of land, for the purpose of paying demands against the estate, and for the final adjustment of their accounts. But the act does not purport to invest them with power to sell for the benefit of the estate, or for anything touching the affairs of the estate, but solely for the
It will now be necessary to consider the effect of the amendatory act. The act assumes that Mrs. E. was no longer capable of acting in conjunction with Boon in executing the poAver, because her letters of administration were revoked in consequence of her marriage; and proceeds to confer upon Boon the sole power, but does not require him to give any neAV or additional bond. The idea in the mind of the draftsman of this act Avas, unquestionably, that in the execution of the power E. Watts and Boon acted in their administrative capacity, and that the poAver attached to their office, and the marriage of E. Watts, disqualified and disabled her from further acting. But if this Avere so, the act Avould have been superfluous and unnecessary, as the poAver Avould have survived to Boon by operation of laAV. But Ave have seen that this was a mistaken view of the Iuav, and that the parties, in executing their trust, Avere the donees of a mere naked statutory power. In the capacity in which she acted in and about the sale of the realty, the marriage of Mrs. Watts Avas no bar to her continued
The liability of the surety can not be extended beyond the plain terms of his contract. He is bound by the conditions of his obligation, and no further. His undertaking will extend to whatever is comprehended within the scope and limits of his engagement, but to nothing more. If a person engage as surety to several individuals, the engagement must be understood to be to all of them collectively and jointly; and if any of them die or cease to act, it will not be available in respect to transactions afterward by the survivors or the persons acting. (Blair v. Perpetual Ins. Co., 10 Mo. 559 ; Weston v. Barton, 4 Taun. 673.) The sureties in the present case may have been very willing to be bound for Mrs. E. Watts and Boon jointly, and utterly averse to assuming any liability for Boon separately. And when the attempt is made to make them responsible for the sole acts of Boon, they have a right to stand upon the terms of their contract, and say that they entered into no such agreement.
My conclusion, from the whole case, is that the sureties are not liable ; that the judgment of the court below was right, and ought to be affirmed.