Aycock & Clifford v. Braun

Robertson, Associate Justice.

To protect the interests of the creditors and distributees of an estate of a deceased person, the administrator is bound to the faithful discharge of Ms duties by a solemn oath, as well as by a solvent bond. R. S., arts. 1886, 1889. The appointment may be granted to none not qualified to act, and when one, not entitled by relationship to the deceased or interest in the estate, applies, good character is an express addition to the qualifications. Art. 1861. This qualification is passed upon by the court, but its final ordeal is in the test of the applicant’s ability to procure the requisite surety. He is not a fit person to administer the sacred trust, unless he can give the bond. The petition alleged that Braun lacked tMs qualification. He could not obtain, on the simple merits of his character for honesty and business efficiency, the certification of competent sureties. A contract to remove this impediment without curing the defect, and to secure Mm the office in spite of his disqualification, is a contract to evade the law, to escape a safeguard which the law has established against maladministration, and protects by forbidding the citizen from becoming interested in its avoidance or destruction. The courts will never enforce an agreement, the tendency of which is to impose upon this trust an unsuitable incumbent. Porter v. Jones, 52 Mo., 399.

Many honest and capable men may not be able to make $150,000 bonds, but such as cannot are not entitled to admiMster upon estates worth $75,000. Braun could not acquire this qualification by leasing the plaintiff’s ability to make the bond. Such a contract would tempt the administrator to reimburse his extraordinary outlay by unnecessary or illegitimate charges against the estate, opportunities for which have not been utterly prevented by stringent legislation and the utmost vigilance of the courts; while plaintiffs’ zeal in securing the approval of their client’s bond would be stimulated by a reward, additional to compensation for their professional services, contingent upon success. There is nothing whatever in this record that indicates any purpose on the part of Braun or the plaintiffs to do any thing wrong or improper. On the contrary, the parties are to be-credited, as they consistently may, with honest and honorable motives in all done or contemplated. But the execution of the contract made in accordance with the stipulations averred, puts in operation an influence calculated to corrupt good men, and which would induce the evil-disposed to tamper with the course of justice. The contract must be tried by its immediate tendency, and if that is vicious, the innocent intentions of the parties cannot save it. Marshall v. Railway Company, 16 How., 314.

One of the immediate objects of this contract was to have an unsuitable person appointed administrator of an estate. Pollack’s Principles of Contracts, 342. The services actually rendered by the plaintiffs, before Braun abandoned his scheme, were in furtherance of that part of the contract which the policy of the law forbids the courts to enforce. The demurrer to the petition was rightly sustained, and the judgment of dismissal is affirmed.

Affirmed.

[Opinion delivered May 7, 1886.]