James v. Nunley , 6 Indian Terr. 336 ( 1906 )

Townsend, J.

(after stating the facts). The appellant (defendant) has filed 18 assignments of error, but it does not occur to us that anjr of them need much discussion. It appears from the record that the appellee (plaintiff) was the widow of Utley Nunley, deceased, and was in the possession of, and claimed to be the owner of, the property sued for in this action of replevin. This suit was instituted on March 26, 1904, before a United States commissioner, by filing affidavit and complaint in replevin. No bond was executed, and tbe cattle sued for not taken possession of by the officer. The defendant filed his answer, and says he holds the property as the agent of Mrs. Kate D. Love, as administratrix of the estate of R. M. Love, deceased, but it also appears by the record that Kate D. Love was not administratrix of the estate of R. M. Love, deceased, at that time, and was not appointed such administratrix until April 5, 1904, when she was appointed such administratrix by the county and probate court of Red River county, Choctaw Nation. The case was tried before the commissioner and plaintiff recovered judgment, and defendant appealed to the District Court at Antlers, I. T. Subsequently, on motion of defendant, Mrs. Kate D. De Berry, formerly Kate D. Love, and L. S. De Berry, were made parties defendant. They both filed answer and the case was transferred to Atoka, I. T., and there tried before a jury, and plaintiff recovered judgment for the return of the cattle or their value in the sum of $78. Motion for new trial was filed and overruled, and defendant brought the case to this court by writ of error.

The court instructed the jury as follows: “The defendant in the case claims that he was the agent for Mrs. Love, who was the administratrix of the estate of her husband, R. M. Love, deceased. Now, gentlemen of the jury, if you find from the testimony before you that this suit was instituted by Mattie Nunley against Mayo James before any letters of administration were ever issued to Mrs. Love then you will readily see that James could not take the property as an agent of the administratrix. Because, if you find that the administration was not taken out in April, that would not justify Mayo James in taking the property from Mattie Nunley although the Love estate had a mortgage, because Love having a mortgage there should be somebody appointed to represent the estate because they could then go legally and take charge of the property and take it out of the possession of Mattie Nunley, the plaintiff. So, in this case, if you find that there was no administration in the Love estate at the time this property was taken, and you find that it was taken from Mattie Nunley, then your verdict should be for the plaintiff. Unless you further find that Mattie Nunley consented and agreed that the property be taken.” To this instruction appellant filed his ninth assignment of error as follows: “Assignment 9: The court's instruction complained of in this assignment are clearly wrong, as it was the duty of Kate D. Love, the widow of R. M. Love, -to take all necessary steps to preserve the estate of her deceased husband. As the widow, she was interested in the preservation of the estate, and, as the mother of her minor children, she was the natural guardian, and she might have gone herself and taken possession of the property described in the mortgage, or she might have employed any person to do the same, and, if in doing so she purported to act as administratrix, and in fact was not administratrix, -at the time, it would be immaterial. The appointment of Mrs. De Berry as administratrix of the estate of R. M. Love perfects her title back to the death of the deceased and her acts; relating to the property are to be construed as a part of her acts as administratrix. Section 173 and 193, vol. 1, Woerner on the American Law of Administration.” Citing section 173, Woerner, as follows: “For particular purposes the letters of administration relate back to the time of the death of the intestate, and vest the property in the administrator from that time, attaching to property coming from a foreign jurisdiction as soon as it comes into that of the domicile. On this principle, an administrator may maintain trespass for injuries to the goods of the intestate committed after his death and before the appointment, or trover for property so wrongfully detained, or an action on a contract madé with the defendant before appointment, or for money belonging to the estate collected by defendant before grant of letters, or assumpsit for money paid to .defendant's order. And, on the same principle, the heirs have no power, before the appointment .of an administrator, to bind the personal estate by any agreement. ‘This doctrine of relation is a fiction of law to prevent injustice, and the occurrence of injuries where otherwise■ there would be no remedy, and would not be applied in cases where the rights of innocent parties intervened,' nor ‘to recognize, validate, and bind the estate by the unauthorized acts which have been done to the prejudice of this estate, by any one, while the title was in abeyance,' nor to give effect to the statute of limitations, which does not run during the period intervening between the death of the intestate and the grant of letters.” It appears that this doctrine of relation is a fiction of law to prevent injustice and the occurrence of injuries where otherwise there would be no remedy. This authority simply holds that the ■administrator can institute suits after his appointment, and for some purposes the letters of administration relate back to the time of the death of the intestate. It nowhere authorizes any one not an administrator to seize and take the possession .of propertj from one in ■ possession, and claiming to be the owner, or to appoint an agent for any such purpose. In our opinion the judgment of the court below was correct, and it is affirmed.

Affirmed.

Gill, C. J., and Lawrence and Clayton, JJ., concur.