Krumdick v. White
Before: Haynes
Synopsis
Appeal—Law oe Case—Construction of Instrument.—A construction given, to an instrument upon a former appeal must be taken as the law of the case upon a second appeal, where no new facts appear requiring a different construction.
Estates oe Deceased Persons—Agency Revoked by Death—Invalid Sale by Agent—Assets of Estate.—The power of an agent to sell personal property is revoked by the death of the principal, and the prop, erty sold by such agent subsequent to the death of the principal belongs to his estate and was assets to be administered by the executrix.
Id.—Estoppel—Distribution of Proceeds Among Creditors of Decedent —Mistake of Law by Purchaser.—Where the purchaser of property from the agent of a decedent knew the terms of the instrument under which the property was sold, and knew of the death of the principal, and was not misled as to any facts concerning the power of the agent to sell the property of the decedent, the fact that the purchase money paid for the property was distributed by the agent among those creditors of the decedent who presented their claims to him, including a claim presented to him by the executrix, does not create an estoppel upon the executrix to recover the property as part of the assets of the estate.
Id.—Ratification—Power of Executrix—Rights of Preferred Creditors.—The executrix of a deceased person, whether as executrix or legatee, cannot authorize a sale of the property of the estate by an agent of the deceased, and therefore cannot ratify such sale, nor could such unauthorized sale be made valid retroactively to the prejudice of creditors having preferred claims for the expenses of the last sickness of the deceased, and funeral expenses, without their consent.
Haynes, C. Upon the first trial of this case the defendant had judgment, and the plaintiff appealed, and the judgment was reversed by this court. (See Krumdick v. White, 92 Cal. 143.) After the reversal a new trial was had, which resulted in findings and judgment for the plaintiff, and defendant appeals therefrom, and from an order denying his motion for a new trial.
The action is in claim and delivery to recover possession of certain personal property, with damages for its detention.
William Krumdick died February 13,1887. On January 4, 1887, during his last illness, he executed a certain instrument in writing to F. J. Edmunds concerning the property here in question, under which Edmunds [40]sold the property, consisting of horses and wagons, to the defendant in April, 1887, after the death of Krumdick; and this instrument, it is contended by appellant, empowered Edmunds to confer a good title to the property by the sale.
Upon the former appeal a construction was given to that instrument. It was there said: “The instrument was one which constituted Edmunds the agent of Krumdick, while disabled, to carry on his business as a hauler of freights, and to do all acts in that behalf which Krumdick could. But it did not vest any interest in Edmunds to the subject matter of the agency confided and intrusted to him, and at Krumdick’s death the power of Edmunds to sell ceased as to White, who had notice of Krumdick’s death before the former purchased the property.”
This must be taken as the law of the case, and, unless new facts appear requiring a different construction, is conclusive of the correctness of the judgment.
It is urged that a paper intended to be signed by Krumdick’s creditors, and which accompanied the instrument given to Edmunds, was not before this court upon the former appeal, and that the agreement intended to be signed by the creditors, and which was afterward signed by some of them, requires a different construction of the principal. instrument from that given upon the former appeal.
Appellant is mistaken. It is true this creditors’ agreement is not mentioned in the opinion, but it was printed in the transcript immediately following the instrument creating the agency of Edmunds, and must have been considered. If, however, the question were open, there is nothing in the creditors’ agreement inconsistent with or requiring a different construction of the instrument given to Edmunds.
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