Philips, P. J.
I. It is objected that the circuit court had no jurisdiction of this action, as, by the constitution, section 34, article 6, exclusive jurisdiction over the subject matter is vested in the courts of probate.. The language of the organic act relied on is, that: “Said court shall have jurisdiction over all matters pertaining to probabe business.”
It had, long prior to the adoption of this constituí tion, been recognized in practice and by statute, as of the customary jurisdiction of the circuit courts to enter[488]*488tain suits against administrators for the establishment, in the first instance, of demands against estates under administration. Express authority to this end was conferred on the circuit courts by statute, at an early date, which has been continued in every revision up to 1879. See sect. 191, Rev. Stat.
Had it been the purpose of the framers of the constitution to accomplish so important and radical a change 'in practice, as contended for by appellants, it would have been done in explicit terms, and not left to mere implication. Hume v. Railroad, 82 Mo. 229, 234.
Where a court has possessed and exercised jurisdiction over a subject matter, even if it were conceded that such jurisdiction was conferred over it on another court by a subsequent law, such fact would not oust the jurisdiction of the first court, without the employment in the latter enactment of words of exclusion, in the absence of any repealing clause. Concurrent jurisdiction over the subject matter is not unusual in the two courts. Tackett v. Vogler, 85 Mo. 480; Purdy v. Gault, 19 Mo. App. 291; Baptist Church v. Robberson, 71 Mo. 326. The objection to the jurisdiction is overruled.
II. I am of opinion that the demurrer to the evidence should have been sustained. The office and duties of an administrator are fixed and limited by law. He is in no sense of the term an agent, for there is back of him no principal. The personal property of the intestate goes to the administrator to be administered by him as the law directs, and under the supervision of the court of probate. His office is a naked trust, pure and simple. He can make no contract, nor perform any acts other than such as are connected with or incident to the execution of his trust.
So Sewell, J., in Sumner v. Williams et al. (8 Mass. 199), said: “In exercising an authority of this description, an administrator is not the representative or agent of any other person. * * * In short the principle [489]*489undoubtedly is, I think, that an administrator has no power of charging effects in his hands to be administered, by any contract originating with himself; and it ■seems to be clearly understood by the decisions which have been delivered, that his contracts in the course of his administration, or for the debts of his intestate, render him liable de bonis propriis.” So it was held in that case, that an administrator, in selling the real estate •of the intestate, was performing a mere trust duty, and was not authorized to make any warranty binding on the estate, though he might, if he saw fit to so contract, make one binding himself, personally.
In Ferrin v. Myrick (41 N. Y. 319), it is said: “ That the administrator is not the agent of the testator, or of the estate, and, therefore, allowed to contract in its behalf. We are apt to look upon an administrator as holding a like position to that held by a railroad manager, or a bank president.” Further on it is said: “That in all causes of action, where the same arises upon a contract made after the death of the testator, the claim is .against the executor personally, not against the estate, .and the judgment must be de bonis propriis. * * * In all cases the law holds the transaction necessarily to be that of the executor personally, and that the averment of a promise as executor is a nudum pactum. No promise, as executor, can be made, except upon a transaction having an origin before the death of the testator.”
Our Supreme Court has repeatedly, in recognition of this rule, held that the administrator cannot create a new obligation so as to bind the estate. Rittenhouse v. Ammerman, 64 Mo. 197; State v. Reming, 74 Mo. 87; Studebaker v. Montgomery, 64 Mo. 103; Woodbridge v. Draper, 15 Mo. 327. See, also, 1 Estee’s Pleadings, sect. 162, p. 85; Perry v. Cunningham, 40 Ark. 185.
Indeed, the learned counsel for respondent seem to recognize this doctrine of the law, and, therefore, do not claim that this action is for a breach of warranty, but in [490]*490its essence it is an action predicated of fraud and deceit) for falsely and fraudulently representing, prior to the sale, the quality of the article sold.
In other words, it is an attempt to bind the estate for the tort of the administrator, for doing that which his office did not require, and which was not essential to, or a legal incident of, the execution of his trust. In making the sale the administrators were executing theqrder of the probate court, and acting under statutory regulations and limitations. They were not required to-make any such representations.
The false statement was voluntary, and outside of the functions of their office. - And I think, both on authority and reason, there can be no distinction, in principle, between the non-liability of the estate on an express warranty made by the administrator, and his voluntary, fraudulent representations. It would, to my mind, be a legal solecism to say that he could not bind the estate by a formal, express guaranty that the bull was a breeder, and yet the estate be liable for a false-utterance to the same purport.
West v. Wright (98 Ind. 335), was an action for damages .against the defendant for fraudulently representing certain things about the land sold under administration. The court say: “In this fraud he (the administrator) in no wise represented the estate. There was nothing in the relation which he bore to the estate which would justify such action, or make the estate liable. * * * No liability on the part of the estate was created by this fraud.”
Fritz v. McGill (31 Minn. 536), was an action to recover damages consequent upon misrepresentations by the administrator, in the sale of lands under order of probate. The court say: “It is obvious that no cause of action exists for any representations or warranties, which the administrator may have made prior to the giving of the deed by which the title was transmitted: * * * If the administrator was guilty of fraudulent [491]*491representations or conduct, he alone is answerable, and not the estate.”
In Brown v. Evans (15 Kas. 91), the court say r “ We do not think that an estate of a deceased person.' can be held liable for the false representations of the administrator,” citing Dunlap v. Robinson (12 Ohio St. 530); Westfall v. Dungan (14 Ohio St. 276).
In Eustace v. Johnson (38 Cal. 21), the doctrine is' announced that the administrator, and not the estate, is, answerable for his torts ; that as a general rule- of law no action will lie against the administrator, as such, “ to-' which his testator or intestate was not liable.”
There is no hardship in this rule, if regard be had to fundamental principles.
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Philips, P. J.
I. It is objected that the circuit court had no jurisdiction of this action, as, by the constitution, section 34, article 6, exclusive jurisdiction over the subject matter is vested in the courts of probate.. The language of the organic act relied on is, that: “Said court shall have jurisdiction over all matters pertaining to probabe business.”
It had, long prior to the adoption of this constituí tion, been recognized in practice and by statute, as of the customary jurisdiction of the circuit courts to enter[488]*488tain suits against administrators for the establishment, in the first instance, of demands against estates under administration. Express authority to this end was conferred on the circuit courts by statute, at an early date, which has been continued in every revision up to 1879. See sect. 191, Rev. Stat.
Had it been the purpose of the framers of the constitution to accomplish so important and radical a change 'in practice, as contended for by appellants, it would have been done in explicit terms, and not left to mere implication. Hume v. Railroad, 82 Mo. 229, 234.
Where a court has possessed and exercised jurisdiction over a subject matter, even if it were conceded that such jurisdiction was conferred over it on another court by a subsequent law, such fact would not oust the jurisdiction of the first court, without the employment in the latter enactment of words of exclusion, in the absence of any repealing clause. Concurrent jurisdiction over the subject matter is not unusual in the two courts. Tackett v. Vogler, 85 Mo. 480; Purdy v. Gault, 19 Mo. App. 291; Baptist Church v. Robberson, 71 Mo. 326. The objection to the jurisdiction is overruled.
II. I am of opinion that the demurrer to the evidence should have been sustained. The office and duties of an administrator are fixed and limited by law. He is in no sense of the term an agent, for there is back of him no principal. The personal property of the intestate goes to the administrator to be administered by him as the law directs, and under the supervision of the court of probate. His office is a naked trust, pure and simple. He can make no contract, nor perform any acts other than such as are connected with or incident to the execution of his trust.
So Sewell, J., in Sumner v. Williams et al. (8 Mass. 199), said: “In exercising an authority of this description, an administrator is not the representative or agent of any other person. * * * In short the principle [489]*489undoubtedly is, I think, that an administrator has no power of charging effects in his hands to be administered, by any contract originating with himself; and it ■seems to be clearly understood by the decisions which have been delivered, that his contracts in the course of his administration, or for the debts of his intestate, render him liable de bonis propriis.” So it was held in that case, that an administrator, in selling the real estate •of the intestate, was performing a mere trust duty, and was not authorized to make any warranty binding on the estate, though he might, if he saw fit to so contract, make one binding himself, personally.
In Ferrin v. Myrick (41 N. Y. 319), it is said: “ That the administrator is not the agent of the testator, or of the estate, and, therefore, allowed to contract in its behalf. We are apt to look upon an administrator as holding a like position to that held by a railroad manager, or a bank president.” Further on it is said: “That in all causes of action, where the same arises upon a contract made after the death of the testator, the claim is .against the executor personally, not against the estate, .and the judgment must be de bonis propriis. * * * In all cases the law holds the transaction necessarily to be that of the executor personally, and that the averment of a promise as executor is a nudum pactum. No promise, as executor, can be made, except upon a transaction having an origin before the death of the testator.”
Our Supreme Court has repeatedly, in recognition of this rule, held that the administrator cannot create a new obligation so as to bind the estate. Rittenhouse v. Ammerman, 64 Mo. 197; State v. Reming, 74 Mo. 87; Studebaker v. Montgomery, 64 Mo. 103; Woodbridge v. Draper, 15 Mo. 327. See, also, 1 Estee’s Pleadings, sect. 162, p. 85; Perry v. Cunningham, 40 Ark. 185.
Indeed, the learned counsel for respondent seem to recognize this doctrine of the law, and, therefore, do not claim that this action is for a breach of warranty, but in [490]*490its essence it is an action predicated of fraud and deceit) for falsely and fraudulently representing, prior to the sale, the quality of the article sold.
In other words, it is an attempt to bind the estate for the tort of the administrator, for doing that which his office did not require, and which was not essential to, or a legal incident of, the execution of his trust. In making the sale the administrators were executing theqrder of the probate court, and acting under statutory regulations and limitations. They were not required to-make any such representations.
The false statement was voluntary, and outside of the functions of their office. - And I think, both on authority and reason, there can be no distinction, in principle, between the non-liability of the estate on an express warranty made by the administrator, and his voluntary, fraudulent representations. It would, to my mind, be a legal solecism to say that he could not bind the estate by a formal, express guaranty that the bull was a breeder, and yet the estate be liable for a false-utterance to the same purport.
West v. Wright (98 Ind. 335), was an action for damages .against the defendant for fraudulently representing certain things about the land sold under administration. The court say: “In this fraud he (the administrator) in no wise represented the estate. There was nothing in the relation which he bore to the estate which would justify such action, or make the estate liable. * * * No liability on the part of the estate was created by this fraud.”
Fritz v. McGill (31 Minn. 536), was an action to recover damages consequent upon misrepresentations by the administrator, in the sale of lands under order of probate. The court say: “It is obvious that no cause of action exists for any representations or warranties, which the administrator may have made prior to the giving of the deed by which the title was transmitted: * * * If the administrator was guilty of fraudulent [491]*491representations or conduct, he alone is answerable, and not the estate.”
In Brown v. Evans (15 Kas. 91), the court say r “ We do not think that an estate of a deceased person.' can be held liable for the false representations of the administrator,” citing Dunlap v. Robinson (12 Ohio St. 530); Westfall v. Dungan (14 Ohio St. 276).
In Eustace v. Johnson (38 Cal. 21), the doctrine is' announced that the administrator, and not the estate, is, answerable for his torts ; that as a general rule- of law no action will lie against the administrator, as such, “ to-' which his testator or intestate was not liable.”
There is no hardship in this rule, if regard be had to fundamental principles. “No person may profess ignorance of the extent of the power of a public agent;' and individuals, as well as courts, must take notice of the extent of authority conferred by law upon a person' acting in an official capacity.” State ex rel. v. Hays, 52 Mo. 580; Commonwealth v. Fenbe, 10 Mass. 30; 1 Met. 165.
The plaintiff, in dealing with the administrator, and’ his imputed agent, Harris, concerning an official sale,, was bound to take notice of the fact that he was execut-' ing a naked trust, and was clothed only with such powers and duties respecting the sale as the law confers upon him. So when the alleged “manager” made a’ statement respecting the quality of the bull, the plain-1 tiff had no' right to assume that it bound the estate. It'' was purely personal; and the plaintiff had no right to1’ expect that the estate would make indemnity for such mere volunteer statement.
The plaintiff’s own testimony, indeed, indicates that' he recognized this legal fact. For he advised the ad-' ministrator to make no warranty, presumably because he knew any breach thereof would fall alone upon the administrator personally. He is now seeking to recover, in the face of his own suggestion, and after the announcement was distinctly made that no warranty was' [492]*492made, except as to title and pedigree. Counsel for respondent have cited in their brief a number of cases in which it was held, that to an action on a note given to an administrator for property bought at an administrator’s sale, the defendant might plead, by way of failure of consideration, that he was induced to make the purchase and execute the note by reason of the false and fraudulent representations of the administrator, at the time of the sale, touching the quality of the property. This rests on a different principle from this action. We are not called upon in this case to pass upon the validity •of such a defence.
But even where this character of defence is admitted, it is conceded, as in the case of Able v. Chandler (12 Texas, 92), cited by plaintiff, that “the administrator of an estate cannot bind the estate by his warranty, or render it responsible in damages for frauds or torts committed by him.” It is the merest technicality, without substance, to attempt to escape this rule, by claiming that the action here is for money had and received. In its essence it seeks remuneration for the fraud and the instruction given by the court, on behalf of plaintiff, directed the jury, if they found the issues for the plain-' tiff, to allow him “the purchase price of the bull, less what they may believe from the evidence he was actually worth at the time of his purchase, and six per cent, interest from the time of purchase.” This is precisely what the jury did. The purchase price was eight hundred and five dollars, and the jury returned a verdict for $762.25. Besides, if the action is to be treated as one for money had and received, it would fail, because plaintiff did not offer to rescind by returning the bull, but yet retains him. Yeater v. Hines, post, p. 619.
Nothing could better illustrate the impolicy of the rule contended for by plaintiff than the facts of this case. Without any representations made by any one, another party bid eight hundred dollars on this bull. Had he bought, and the plaintiff stood out of the way, there [493]*493could be no pretense, but the estate would have enjoyed the benefit of eight hundred dollars. But, by the plaintiff relying upon a remark made to him by an imputed “manager” of the sale, the estate would realize only $37.75.
Such a rule would practically put it in the power of administrators, by unnecessarily going outside of their official duties, to destroy the estate committed to them under the law as trustees.
I very much question, too, whether the case should have gone to the jury on another branch touching the merits. To maintain this action it devolved on the plaintiff to show the scienter, that the administrator had knowledge of the imputed defect in this bull. Dunn v. White, 63 Mo. 184. There is no evidence that the administrator had any such knowledge. But the attempt was to show that Harris knew something of. it. If it were conceded that Harris could be regarded as an agent, so as to bind the administrator by his acts and declarations, the general rule is, that the knowledge possessed by the agent, to affect the principal, must have come to the agent during his agency, and not after, or before; or, if before, it must be so recent that it will be presumed to have been in his mind at the time of the act done by him, which is to bind the principal. Story on Agency, 160. The evidence to carry home to Harris that this bull was impotent, or that his penis was broken, or useless, was of a most unsatisfactory character; and the isolated instances of the bull ’ s failure to copulate were from one to two months before the sale, and the verdict would stand on most narrow ground, based upon this proof, that Harris had knowledge of the bull’s impotency. But it is not necessary, in view of the conclu* sion hereinbefore reached, to pass upon this question directly.
The judgment of the circuit court should be reversed, and the demand disallowed. The other judges concurring, it is so ordered, and the cause is remanded [494]*494.to the circuit court, with directions to enter judgment accordingly, and so certify the same to the probate .court of Audrain county.