Manion's Admrs. v. Titsworth

57 Ky. 582

• Court: Court of Appeals of Kentucky
• Decided: December 26, 1857
• Status: Published

Opinion

Judge Simpson

delivered the opinion of the court.

Adam Cooper died intestate in the State of South Carolina in the year 1822. He left a widow and two infant children, one of whom afterwards died unmarried and in infancy. Administration on his estate was granted by the court of ordinary in the year 1823, to his widow and his brother George B. ■ Cooper. Martin Manion afterwards intermarried with the widow, and in 1833 was appointed guardian of her infant daughter by the same court.

At the time of the grant of administration the court of ordinary entered an order authorizing a sale, by the administrators, of the personal estate of the intestate, at public auction. The intestate owned at the time of his death a female slave named Kate, and her two children. A sale of the personal estate, including these slaves, was made and reported to the ordinary shortly thereafter, by which it appeared that the slaves were purchased at the sale by the widow, at the price of $730. By subsequent proceedings in the court of ordinary, and settlements there made with the widow as administratrix, and George B. Cooper as administrator, of the estate, the sale of the slaves was recognized as valid, and the widow was charged with the price of them in her administration accounts.

Manion continued to reside in South Carolina until about the year 1838, when he removed to this state, bringing his ward along with him. In 1841, she being then about twenty years old, intermarried with George Titsworth, who afterwards died, and in 1853 this action was brought by her against the administrator of Martin Manion, who had died in the meantime, asserting a right to an interest in the slaves which had been purchased by her mother at the sale aforesaid, and their offspring, now fourteen or fifteen in number, on the ground that the purchase was invalid and did not confer any right on the purchaser, as she was one of the administrators; but that the slaves, notwithstanding the sale and purchase by her, still continued to be a part of her intestates estate, and as such the plaintiff was entitled to an interest therein.

The defendant denied the plaintiff’s right to any interest in the slaves, and insisted that the purchase by the widow was legal and valid, and that upon her marriage with Manion the title thereto vested in her husband, who had ever since claimed and held them as his own. The defendant also relied upon the lapse of time and the statute of limitations as a bar to the action.

1. An administrator who is appointed and qualified in an7 other state, and removing to this state, may be sued here and compelled to account for assets received in another state.— (Dorsey’s Exrs. v.Dorsey’s adms. 5 J. J. Marsh. 280; Atchison’s heirs vs. Lindsey, S¡c.8B.Mon.86.) 2. The responsibility of an administrator ap pointed in another state is to be determined by the laws of the state where the qualification takes place. 3. If the purchase of slaves by an administrator be sanctioned by the constituted authority of the State where it takes place, and where administration was granted, it will prima jacio be s-o treated in a suit against the administrator in Kentucky. (Da vis vs Connelly's Ears. 4 B Mon. i lit); Greenleaf’s Ev. vol. I, 550.)

It is the well settled doctrine in this state, that an administrator or executor who is appointed, or who qualifies in another state, and there receives assets into his hands, may be sued in the tribunals of this state, by the person or persons entitled to such assets, if he shall have removed to, and settled in this state. (Dorsey's executor vs. Dorsey's admrs. 5 J. J. Marshall, 230; Atchison's heirs vs. Lindsey &c. 6 B. Mon. 86.)

If therefore Manion held the slaves in contest in his fiduciary character either of guardian or administrator, his estate is not exempt from all responsibility in this action, on the ground that having received his appointment under the laws of South Carolina, and acquired the possession of the property in that state, he is only accountable to the tribunal wffiich appointed him, that being the proper one to settle his accounts, and require distribution to be made of the assets in his hands, according to the laws of that state. But as he became a citizen and resident of this state, and the property claimed by the plaintiff wTas also here, there is no obstacle to a recovery by her, provided the other grounds of defense set up and relied upon by the defendant are insufficient to defeat her claim.

But although a foreign administrator, who has removed to this state, may be here required to account for the assets in his hands, to those who may be entitled to them, it does not follow that the mode of administration, or his liability as administrator, is to be tested by any other law than that of the state under whose authority his appointment was made. As the intestate was domiciled in South Carolina at the time of his death, and administration on his estate was granted there, the rights, powers, and duties of the administrator depend upon and are to be tested by the laws of that state.

The record from the ordinary’s court in South Carolina is relied on to prove, prima facie, that the slaves were rightfully sold, and that the purchase of them by the administratrix was legal and valid. The proceedings before the ordinary show that the widow’s purchase of the slaves was reported to and sanctioned by that tribunal, and was conclusively approved and confirmed by it, so far as it had authority to do so, in a final settlement made by it in which the widow, as administratrix, was charged with the price of the slaves.

4 Settlements of accounts by fiduciaries are ex parte, and are liable to be surcharged and reexamined by those interested.

The record from the ordinary’s court shows that the ordinary appoints administrators and appraisers, receives the appraisement and sale bills, orders a sale of the estate in the hands of the administrator, and settles his accounts. According to the decisions of this court the record of the proceedings of a regularly constituted tribunal of any of the states is itself prima facie evidence of its conformity to law, and of the authority of the tribunal to act judicially in the premises. The general principles applicable to this subject are laid down in Davis vs. Connelly's executors, 4 B. Mon. 136, and in Rogers vs. Rogers, 15 B. Mon. 364.

But it is contended that these principles have no application to the proceedings before the ordinary in South Carolina; that his action is ministerial, and not judicial, and that the examination and settlement of an administrator’s accounts by him, not being a judgment between contesting parties, does not prove anything against the distributees of the estate. His court, however, is clearly a court of probate and administration, and a sentence or order of that court, upon matters properly within the jurisdiction of such a court, should be regarded as furnishing at least prima facie evidence not only of the authority of the court to act on the matters of which it has taken cognizance, but also that its action was in conformity with the law on that subject. (Greenleaf's Evidence, vol. 1, sec. 550.)

Inasmuch, however, as the settlement of the accounts of fiduciaries, by a court of probate, is geneerally ex parte, it is justly subject to be re-examined, surcharged, and falsified. The principles upon which the settlement has proceeded, and which have been recognized by it as legal and correct, may be shown to be contrary to law, and wholly incorrect in their application.

It is conceded, that if the court of ordinary exceeded its powers in making the orders and settlements referred to, its acts are void for the want of jurisdiction. An effort was made to sustain this position, by reading, by consent of the parties, some of the statutes of South Carolina in relation to the duties of the ordinary. But none of the provisions of the statutes of that state which were so read, and to which we have been referred, can be construed as having the effect contended for.

As, however, the proceedings before the ordinary afford only prima facie evidence of the legality of the purchase of the slaves by the administratrix, it is insisted, that the statute of South Carolina, prohibiting the continuance of a usage by ’ administrators, of taking the intestates personal property at the appraised value, and declaring that they should be held liable for the fair value thereof, shows the purchase to have been illegal and invalid. But the usage mentioned in this statute tends to prove that administrators were permitted, according to the laws of that state, to purchase personal property; for if •they could not purchase it would have been wholly unnecessary to have prohibited them from taking it at the appraised value. The inevitable inference from this enactment is, that administrators were permitted to purchase such property, and that they had abused the privilege, by taking it at the appraised value, instead of purchasing it at a fair price at public auction, and the statute was passed to remedy this evil, and not to prohibit them from purchasing altogether. The right of the administrator to purchase the personal estate of his intestate, at a public sale made by himself, in the state of South Carolina, is recognized in the case of Stallings vs. Freeman, reported in 2 Hills Eq. 401.

As the record furnishes prima facie evidence that slaves were personal estate in the state of South Carolina in 1823, when the purchase was made by the widow, and that an administrator was not prohibited by law from purchasing the slaves of his intestate, we cannot apply to this purchase the principles of the common law, by which such purchases are regarded as voidable, and the purchaser can be treated as a trustee by the injured parties. We might be permitted to do it, in the absence of all testimony in regard to the law of South Carolina on the subject, but having before us some evidence of what that law was at the time of the purchase, it became incumbent on the party attempting to assail the transaction to prove either that the purchase was prohibited by the law of that state or was fraudulent. No attempt has been made to establish either fact, nor has any effort been made to prove that the price at which the slaves were sold at the administrator’s sale was not their full value. Consequently the title of the slaves vested in the widow by her purchase, and upon her intermarriage with Manion vested in him as her husband.

Besides, we are inclined to the opinion, if the purchase had been voidable under the rules and principles of the common law, that still the plaintiff’s action would be barred by the lapse of time. The purchase was made more than thirty years before the action was commenced. Manion from the time of his marriage in 1832, until his death, claimed the slaves as his own, and did not admit that the plaintiff had any right to or interest in them. He never claimed or held them as her guardian, but in his own right. The manner in which he held and claimed them must have been known to her, and she could have maintained a suit against him for her interest in them at any time after he got possession of them.

5. One disability, as infancy and coverture, cannot be added to another to prevent the running of the statute of limitations. (Finley Sf Wife vs. Patterson, 2 B. Mon. 78.) 6. Constructive trusts are not exempted from the operation of the statute of limitations, [but the statute cannot avail against an express and direct trust.— (Talbot vs.Todd, 5 Dana, 199; Coster vs. Murray, 3 John dry. R. 531; 16 Sargent ¿f Rawle, 379.) And when the trust is openly denied the statute of limitations will apply. (Bohannon’s Heirs vs. Streshley’s Exrs. 2 B. Mon. 439; Finley, S(C., vs. Patterson, supra.)

If the fact that he was her guardian excused the failure to sue whilst she was an infant, during which time she was, independent of that circumstance, exempted by law from the operation of the statute of limitations, nevertheless she attained the age of twenty-one more than ten years before the commencement of this action; and the fact she was a married woman when her disability of infancy ceased did not prevent the application of the statute—it being well settled that one disability cannot be added to another, with the effect of defeating its operation. (Findley and wife vs. Patterson, 2 B. Monroe, 78.)

And as, even according to the principles of the common law, the purchase was not absolutely void, but the purchaser might have been regarded as the trustee of the infant, in consequence of her incapacity to purchase for her own benefit, still the trust would have been merely constructive, and not an express and direct trust, and consequently would not have been such a trust as is exempted from th^ operation of the statute, and cannot be affected by length of possession. (Talbot vs. Todd, 5 Dana, 199; Coster vs. Murray, 5 John. C. R. 531; 16 Sarg & R. 379.) And the trust having been openly denied, the statute of limitations would apply. (Bohannon’s heirs vs. Sthreshley's exors. 2 B. Mon. 439, and Findley &c. vs. Patterson, supra.)

In this case there has been a long adverse holding, an open renunciation of the trust if one ever existed, and this was well known to the claimant. The purchase under which the slaves have been thus adversely held, was made more than thirty years before the commencement of the action. Under these circumstances a claim founded on an alleged invalidity of that purchase must be regarded as stale, and should, as we are inclined to think, be barred by the lapse of time. But it is not necessary to decide this question, inasmuch as the purchase must be regarded as legal, and as having under the laws of South Carolina, invested the purchaser with a valid title to the slaves.

7. The husband may, during coverture, release or assign the wife’s dioses in action, and thereby defeat her light as survivor; but if the release be based upon an illegal consideration,or any part of it be illegal, it will not avail.

But, although the plaintiff had no right to a judgment for any part of the slaves in contest, she was, in our opinion, entitled to some relief. Manion had acted as her guardian, and as such had in his hands, according to a settlement he made with the ordinary in 1833—before he removed to this state—the sum of $297 78, belonging to his ward. As, however, she continued to reside with him until her marriage in 1841, he should not be held responsible for interest upon the money in his hands during that time, but should account for interest upon it, only from the time of her marriage.

An effort has been made to impeach the settlement he made with the ordinary, on the ground that an allowance was made him for supporting his ward before he was appointed her guardian. But the allowance was not made to him, but to her mother as administratrix, and the object of the settlement was to ascertain the amount which was in his wife’s hands as administratrix, for which he was to be charged as guardian. We do not perceive anything unreasonable or improper in that allowance.

It is, however, contended on the other side, that Manion in his lifetime obtained from George Tits-worth, the plaintiff’s husband, a release of any and every demand which he and his wife had against him as guardian; and a release to that effect has been set up and relied upon. There is no doubt but the husband may, by the execution of a release or an assignment of the wife’s choses in action, during his lifetime, for a valuable consideration, defeat her right of survivorship in them. But it is insisted that the release in this case was given for an illegal consideration, and is therefore invalid; and such, from the testimony, appears to be the fact. Manion had sued Titsworth for an assault and battery, and threatened him with a criminal prosecution for wounding with an intent to kill, being the same injury for which he had brought a civil action. A compromise was entered into by the parties, by which Manion agreed to dismiss his suit, and not to prosecute Tits worth for the wounding with intent to kill, and in consideration thereof the latter agreed to and did execute a release to the former, discharging him from all liability as guardian on account of the balance in his hands due to the latter in right of his wife. It is^well settled that an agreement tó compound a criminal prosecution is illegal, and every contract having such an agreement for its consideration is invalid and unobligatory. The fact that the dismissal of the action for the private injury constituted a part of the consideration is not sufficient to sustain the contract. Part of the consideration being illegal, the whole contract was thereby vitiated. Nor does it make any difference that Manion by dismissing his suit, in pursuance of the agreement between the parties, lost all redress for the personal injury he had sustained, and cannot be placed in statu quo, inasmuch as such loss resulted from his own illegal act in entering into an agreement which was expressly prohibited by law. It follows, therefore, that the release executed to Manion by Titsworth was illegal and invalid, and does not deprive the plaintiff of the right to recover in this action the money due her by her guardian.

Wherefore, the judgment is reversed, and cause remanded that a judgment may be rendered in favor of the plaintiff for the sum of $297 78, with interest thereon from the time she was married, and her costs.