Comstock v. Crawford
A STATUTE of Wisconsin Territory ordained that there should be appointed by the Governor, in and for each county, a person to be known as 'the public administrator' thereof; and when any person shall die intestate, leaving personal property within the Territory, but leaving no widow, next of kin, or creditor living therein, 'administration'-the statute went on to say-'shall be granted' to the 'public administrator' of the county in which the intestate died, or, if the decedent have been a non-resident, of the county in which the estate may be found. The statute further ordained, that when administration shall have been granted to any public administrator, and it shall afterwards appear that there is a widow, next of kin, &c., the judge of probate shall-on application to do so made within six months after such grant revoke the letters granted to the public administrator and grant them to such widow, next of kin, &c., according to law.
In force in the same Territory, along with this statute, was another, distinct and independent of it, providing, much as others do in different States, for the sale, under order of the county Probate Court, of the real estate of decedents, to pay debts when personalty left is insufficient to do so. It enacted that when the personalty should not be sufficient for this purpose, 'upon representation, and the same being made to appear to the District or Probate Court of the county where the deceased person last dwelt, or in the county in which the real estate lies,' the said court might license the administrator to make sale of all or any part of the realty, 'so far as shall be necessary to satisfy the just debts.' 'The said court,' the act proceeded to say, 'previous to passing on any petition or representation for the sale, shall order due notice to be given to all parties concerned, or their guardians, who do not signify their assent to such sale, to show cause, at a time and place appointed, why such license shall not be granted.'
With these acts in force in Wisconsin, and owning personalty in Iowa County and realty in Grant County, of that Teritory, one Comstock died in Illinois, having been, before and at his death, domiciled there. His brother was appointed, soon after, administrator, by the Probate Court of Iowa County, in Wisconsin; but he never took possession of the property of the estate, nor attempted to exercise ownership over it; and in a short time after his appointment sent word to the probate judge that he was unable to attend to the duties of the administration, and requested that officer to appoint another kinsman of the decedent, one Ripley, of Illinois, to the place. A formal resignation sent afterwards was accepted, and Ripley appointed; nothing, however, in all the matter of the estate, appearing about the 'public administrator.'
A few years afterwards, Ripley, acting under the letters granted to him in Wisconsin, applied to the Probate Court of Grant County, in that Territory, for license to sell so much of the real estate of the deceased in the county as would 'enable him to pay the sum of $8000,' together with the costs and charges attending the sale.
The record of the proceeding-and this is material-stated the fact that written application for the sale had been made. It set forth the application at length, representing that the personal property of the deceased was insufficient to pay his just debts by the sum of about $8000. It gave the order directing publication of notice of the application; it recited that due notice had been given; it contained (by way only, however, of incorporation or interposition in it) a certificate of a probate justice of Illinois (in which State it appeared that administration of Comstock's effects had also been had), that the personal property of the deceased had been exhausted in payment of his debts, and that there remained debts unpaid to the amount named. 'And it being made to appear.' the record went on to say, 'that it is necessary and proper that the said administrator should be licensed' to make sale of the real estate, or so much as will enable him to pay the sum of $8000, due proof of the existence and amount of said debts being made to the court, and no pweron appearing to make objection, the court adjudged and decreed that 'the said adminstrator be licensed, authorized, and empowered to sell so much, &c., as may enable him to pay the sum of $8000, the debts due and owing from said estate, together with the costs and charges attedning the sale,' &c.
Ripley made the sale, the purchaser being a certain Crawford, defendant here and below; and he having received the administrator's deed and entered into possession, the heirs of Comstock now brought ejectment against him in the Circuit Court of Wisconsin, to get back the land. On the trial the defendant produced and gave in evidence, under objection, the record of the Probate Court of Iowa County, containing the letters of administration, resignation, &c., and also the record of the Probate Court of Grant County, above stated, and closed.
After the defendant had thus closed, the plaintiff, for the purpose of proving collusion and fraud between the administrator and the purchaser, offered the record of a license to the administrator to sell the same premises, subsequent in date to the one above mentioned. The plaintiff offered, also, to prove that the administrator had made sales to the extent of $10,000, while his license to sell was to the extent of but $8000. But both offers were refused by the court.
The admission of the letters, resignation, and records of the Probate Court, and these two refusals, were the matters considered on writ of error here. The record did not show, however, that the representation, which was the preliminary step in the proceeding for the sale, gave the amount and description of the personal property of the deceased, or a statement of the just debts which he owed. Neither, independently of the certificate of the probate judge of Illinois, did the order for the sale show-otherwise than as was to be inferred from the recital, just above quoted, of its being 'made to appear that it was necessary and proper that the said administrator should be licensed to make sale of the real estate'-that the personal property of the estate was insufficient to pay the debts.
The defendant had judgment, and the plaintiffs brought the case here on error.
Messrs. Buttrick, Hill, and J. S. Brown, for the heirs, plaintiffs in error.
I. The appointment of a general administrator for the estate of a non-resident intestate, was extra-judicial and void under the statute. The administration belonged to 'the public administrator' by its imperative terms. The appointment of that officer was not given to the court. The governor was to make it, and of course had made it. The public administrator-executor a lege constitus-like an executor a testatore constitus, was ever present, ready to receive the administration, to perform his duties prescribed by law, to execute and carry out the process, the orders, decrees, and sentences of his court. Yet he is never heard of in the case, no more than if neither he nor the case had ever existed. Griffith v. Frazier,  in this court, temp. Marshall, is in point. The syllabus of the case is thus given by Cranch:
'So long as a qualified executor is capable of exercising the authority with which he is invested by the testator, that authority cannot be conferred either with or without limitation by the court of ordinary or any other person. And if during such capability of the executor the ordinary grant administration either absolute or temporary to another person, that grant is absolutely void.'
II. If the appointment of the first administrator was valid, the appointment of the second was void. Unless enabled by statute, administrator cannot resign. This is the law of Wisconsin as held in Sitzman v. Paquette. 
III. The record of the Probate Court of Grant County does not support the license to sell.
1. The representation to the court does not give the amount and description of the goods and chattels of the deceased, nor a statement of the just debts which he owed. These were essential facts which were to be shown to the court before it could act.
2. The order for the sale does not show the insufficiency of the personal property. This is the main point in our case. The order shows that Ripley filed a certificate, and that it appeared to the court that it was necessary and proper that a license should issue, and that due proof of the existence and the amount of the debt was made, but the all-important fact that the goods and chattels belonging to the estate were insufficient to pay them nowhere appears, unless we resort to the contents of the certificate of the probate justice of Illinois. Obviously, there was nothing but this before the court relative to debts, personalty, or anything else. The Probate Court of Wisconsin avoids the responsibility of declaring that it had evidence or was satisfied that the debt exceeded the personalty. The record of this Wisconsin court interposits in an anomalous way-a way which shows that it knew nothing on the subject-a certificate from a person in another State. Certainly under the statute this can make no foundation for the license, or for the order preliminary thereto.
Had the Probate Court of Grant County inquired into and determined the existence of the fact, then the defendant in error might perhaps claim immunity under Grignon's Lessee v. Astor.  But this case has no application. There the record was perfect and complete. In the language of the court it was absolute verity. There an adjudication had been made, the necessity of the sale established, and to meet it specific real property was designated. The judgment was in rem and of itself operated to divest the title of the heirs; after decree it remained for the ministerial officer to perform it.
If it be argued that because the fact is recited in the license, it is conclusive, our answer is that Sibly v. Waffle,  in the New York Court of Appeals, is in point to the contrary. In that case 'an order of sale recited that it was made upon proof of due publication of the order to show cause.' But what says the syllabus? 'Such recital is no more than a statement by the surrogate that he had acquired jurisdiction, and is of no effect; not showing an adjudication that he found from the evidence, the facts upon which his jurisdiction depended.'
IV. There was a distinct offer on the part of the plaintiff to show collusion and fraud between Ripley and the defendant. The second license tended to do so. Its effect was for the jury, and it ought to have been received.
V. But at best the power to sell was but for $8000, and we have an actual sale for $10,000. It might as well have been for $15,000 or for $20,000. This business of selling the real estate of infant children-the best and often the only dependence they have-is a matter which invites to carelessness and fraud, and which, unless narrowly watched, involves in ruin a class who, from their tender years, claim peculiar care from courts of justice. The order should surely have been interpreted with strictness. 'That no individual or public officer can sell and convey a good title to the land of another, is one of those self-evident propositions,' says Marshall, C. J.,  'to which the mind assents without hesitation, and that the person invested with such a power must pursue with precision the course prescribed by law or his act is invalid, is a principle which has been repeatedly recognized by the court.' This declaration of judicial wisdom from as great a magistrate as ever sat in judgment, applies to much of this case. It applies specially to the mode in which the order to sell was executed.
Mr. Laken, contra, for the purchaser.
Mr. Justice FIELD delivered the opinion of the court.
^1 8 Cranch, 9; and see Warner v. People, 2 Denio, 272; People v. White, 24 Wendell, 539-541; 1 J. J. Marshall, 205, 206; Reynolds v. Orvis, 7 Cowen, 269.
^2 13 Wisconsin, 293.
^3 2 Howard, 319.
^4 16 New York, 180.
^5 Thatcher v. Powell, 6 Wheaton, 125.