
    The State, to use of Moore & Moore, Respondent, vs. Price & Lusk, Appellants.
    1. An allegation that the plaintiffs are administrators de bonis non is sustained by the production in evidence of letters purporting to be general letters of administration, it appearing that there was in fact a prior administration.
    2. The order of the county court is a sufficient appointment of an administrator, without any formal letters, if the party give the bond and take the oath required by law.
    
      Appeal from Cole Circuit Court.
    
    This was an action brought by Moore & Moore, alleging that they were administrators de bonis non of Jesse Renfro, deceased, against Price & Lusk, as securities in the bond of William Martin, the prior administrator. At the trial, the plaintiffs offered in evidence letters of administration, which, on their face, purported to be general. The plaintiffs read in evidence, from tbe record of tbe county court, tbe order appointing them administrators de bonis non. To the admission of this evidence, tbe defendants excepted, and after ,a judgment against them, appealed to this court.
    
      Gardenhire, for appellants.
    
      Parsons and Edwards, for respondents.
   Leonard, Judge,

delivered the opinion of the court.

The only point relied upon in argument for tbe reversal of "this judgment, is tbe alleged variance between tbe allegation and the proof, in reference to tbe representative character of Moore & Moore, for whose use tbe suit is brought. Tbe allegation is, that they are tbe administrators de bonis non of Jesse Renfro, deceased, and their letters, given in evidence, are general, constituting them administrators of the deceased, without any limitation as to tbe effects to be administered. Martin was tbe original administrator, and, of course, tbe subsequent grant of a general administration could only have effect as an authority to administer tbe unadministered effects ; in other words, at tbe very utmost, it could only be in point of •legal effect an administration de bonis non, no matter how .general tbe words might be. Tbe county court, when they made the grant, could confer no other authority, and must bold the letters utterly void, or give them tbe limited effect indicated. Eor tbe purpose of upholding tbe proceedings of tbe county court, we may look to tbe facts existing at tbe time, and'give effect to their letters, to tbo extent of their authority., and stop there. It may be likened to tbe common case of one having power to act, and exceeding bis authority, and yet tbe •act done is valid to tbe extent of tbe power.

Again, tbe order of tbe county court is a sufficient appointment, without any formal letters, if tbe party give the bond and take tbe oath required by law, (Lane’s adm'r v. Clark's adm’r, 1 Mo. Rep. 657; Carroll’s adm’r v. Corn, 1 Mo. Rep. 131; and the remarks of Tompkins, Judge, in reference to this case, in Carpenter v. The State, 8 Mo. Rep. 295.) Here-, the order read in evidence appointed these plaintiffs administrators'ole bonis* non, and the clerk committed the error in drawing np the formal letters'. The judgment is affirmed ;

Judge Scott not sitting...  