[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 444 The power of attorney was duly proved in this proceeding. (Code Civ. Pro. §§ 935, 937; 1 Rev. St. 757, § 6, as amended by chap. 80, Laws of 1883.) It was ample authority for the payment of the money to the person named therein as attorney in fact. That person produced it and made the demand. The judgment provided for the payment of the money to Mrs. Smith. This of course meant to Mrs. Smith or to any one whom she might legally and properly authorize to act for her.
Upon all the facts of this case, which are uncontradicted and which are above stated, we fail to see anything which would justify a court in refusing to direct a payment to be made on this power. The court has ordered the money to be deposited with the chamberlain, and such deposit necessarily results in the further expense of the chamberlain's fees and fees to counsel for taking proceedings to obtain payment from the chamberlain. This added expense should be avoided if it can reasonably be done. We are unable to see what more proof the defendant, Mrs. Smith, could produce unless she came over in person.
Upon the uncontradicted facts as they appear there can be no rational doubt that the Mrs. Smith who signs the power of attorney, is the same Mrs. Smith who appears as defendant in this action. It cannot be doubted that she understood the nature and purpose of the power. Its authenticity is fully proven and is not denied. What more could be done to establish the right of the person named in the power to receive the money? If it be said a later power should be proved, it may properly, as we think, be asked, why? The present one is *Page 446 a full and complete authority, and by the proof it is clear it was made with special reference to litigation about this very property and to the fact that moneys belonging to Mrs. Smith might be paid in actions at law, and the attorney was specially authorized to give receipts and acquittances therefor. Since the execution of the power it has been acted upon by the attorney, and he has been in constant communication with Mrs. Smith through her representative at Aukland, and the plaintiff, but two months before his examination in this case, had himself received a letter from the defendant, his sister, and there is no assertion or suspicion of her death so far as this record shows. Being sufficient when given, and there being no assertion or anything to arouse suspicion of death or that the grantor of the power has withdrawn or in any manner revoked it, why should another be demanded? By the time it would reach this country and the money demanded and paid under it, Mrs. Smith might at that moment be dead. Such a possibility of death must of course exist under any circumstances, but all action cannot be suspended by reason of it. The bodily presence of Mrs. Smith to demand and receive her money ought not to be exacted.
Where a power of attorney is produced to a referee, duly authenticated and acknowledged, it may be prudent to obtain the sanction of the court to recognize and make payment thereon, but when application for such authority is made and the facts appear as in this case, and they are wholly uncontradicted, and there are no suspicious circumstances surrounding the application, we think it is the duty of the court to authorize and direct the payment as provided for in the power, and the refusal to make such direction is the denial of a legal right.
We should undoubtedly refuse to interfere with the order of the court below in any case where the material facts were not in substance admitted or where there was any ground for suspicion regarding the power or the manner of its procurement. In this case we think the attorney made out a legal right to receive the money. *Page 447
The order must, therefore, be reversed and an order entered directing the referee to make the payment to the attorney in fact upon the production of the power of attorney and filing the same with the referee. No costs allowed to either party.
All concur.
Ordered accordingly.