Adams v. Yancey

• Decision Date: 09 June 1913
• Docket Number: 16,256
• Citation: 62 So. 229,105 Miss. 233
• Court: Mississippi Supreme Court
• Parties: R. M. ADAMS v. MRS. MINNIE YANCY ET AL

62 So. 229

105 Miss. 233

R. M. ADAMS v. MRS. MINNIE YANCY ET AL

No. 16,256

Supreme Court of Mississippi

June 9, 1913

APPEAL from the chancery court of Tippah county, HON. D. M KIMBROUGH, Chancellor.

R. M Adams as administrator of T. B. Weir, deceased, filed his final account, to which Mrs. Mamie Young and others excepted. From a decree for exceptants, the administrator appealed.

T. B Weir died intestate in Tippah county, Miss., leaving as his heirs at law his four daughters and the six children of a son, R. A. Weir, who had died about two years before. Appellant, who was appointed administrator of the estate of said T. B. Weir, filed his final account, showing that he had as a part of the assets of the estate of T. B. Weir a note executed by R. A. Weir several years prior to his death in favor of his father, T. B. Weir, which was unpaid, and the amount of which, together with interest, would exceed the distributive share of said R. A. Weir (or his children, who were his heirs), and asked to be allowed to offset the claim of said children against the estate of T. B. Weir with the amount of the note of their father, R. A. Weir. Said children (appellees here) filed exceptions to the final account of the administrator, and denied that said note ought to be used against them in right to their respective shares in their grandfather's estate. The administrator reported to the court that, after an investigation, he found that the said note of R. A. Weir was uncollectible at law. The court entered a decree sustaining the position of the contestants and decreeing that they were entitled to a distributive share in the estate of their grandfather, without regard to said note which could not be held as an offset against them. From this decree this appeal is prosecuted.

Reversed and remanded.

Thos. E. Pegram, for appellants.

Section 1543 of the Code of 1892 provides that: "When any person shall die seized of any inheritance in lands, tenements, or hereditaments not devised, the same shall descend to his or her children and their descendants in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent among them. . . ."

Section 1547 of the same code provides that undevised personal property shall descend to and be distributed among the heirs of the deceased in the same manner that undevised realty descends.

In the instant case the court is called on to construe this particular portion of the above section of the Code, namely: "the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them." If there are no contracts or obligations entered into between the deceased parent and the intestate which affect such share, such as advancements or debts from the deceased parent to the intestate, no trouble arises in the administration of estates in determining what "the share of the deceased parent" really is; but if the parent, during his life time, burdens the share that he is to receive from the intestate by receiving advancements, or by becoming indebted to the intestate, a difficulty arises, namely, are the children of the deceased parent to take the share burdened by these obligations of the parent; or are they to take it independent of, and freed from, such burdens? To state the proposition differently: Are the children of the deceased parent to take that portion of the estate that their parent would have actually received had such parent been alive at the time of the intestate's death; or do they take their parent's pro rata of the estate just as though it never had been burdened by him during his life time? Appellants insist that the language of the statute, namely, "the share of the deceased parent," means that portion of the estate which such parent would have been entitled to had he been living at the time the property descended.

At common law, the fourth rule, or canon of descent was this: "That the lineal descendants infinitum of any person, deceased, shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living. And these representatives shall take neither more nor less, but just so much as their principals would have done." 1 Cooley's Blackstone (4th Ed.), 607, 608; 24 Am. & Eng. Ency. of Law (1st Ed.), 378, 379.

The above is called succession or inheritance by representation of per stirpes. The statute of descents, now under consideration, is substantially a repetition of the fourth rule, or canon of descents, above quoted. In the case of Scott v. Terry, 35 Miss. 65 at the close of the third paragraph on page 69, the court used this language in construing this statute, to wit: "The descendants shall represent and be entitled to their respective parent's share." Under our statute, property never descends to the grandchildren of the intestate per capita, notwithstanding the fact that all of the children of the intestate might be dead, which is another indication that our lawmakers intended to emphasize the doctrine of inheritance per stirpes, or inheritance by representation. Marvin v. Bowlby, 142 Mich. 245, 4 L. R. A. (N. S.), 189, 7 Am. & Eng. Ann. Cases, 559; 14 Cyc. 121, and footnotes; 18 Cyc. 621, and footnotes; Norfleet v. Callicut, 90 Miss. 221, 43 So. 616; Hughes Appeal, 57 Pa. St. 179; Batton v. Allen (N. J.), 1 Halsted's Chancery, 99, 43 Am. Dec. 630; Fletcher v. Wormington, 24 Kan. 259; Head v. Spear (Kan.), 71 P. 834; Smith v. Lynch, 61 Kan. 609.

It does not seem that a court of equity and good conscience, in ordering a distribution of the estate of T. B. Wier, would, as it beyond a doubt will, look to a just and fair distribution of the same among his heirs; that such a court would not make an order that would have the effect of giving to one of the heirs (or a set of heirs) more than twice as much from the estate as other heirs in the same degree of relationship severally receive. Is it equity that R. A. Weir, during the life of himself and father, be allowed to receive a sum of money greater than one fifth of the father's estate, greater than his share of the estate, and then, merely because he dies before his father, his children, who represent him and stand in his stead so far as the distribution is concerned, come along and, by reason of our statute, which says that they shall take his share among them, procure still another share in the estate? If the harsh and inequitable decree of the lower court be permitted to stand, R. A. Wier and his children who represent him and stand in his place, received from the estate of T. B. Wier, more than twice as much as either of the daughters of T. B. Wier, who are the full sisters of R. A. Wier and who are joint heirs with the brother, R. A. Wier.

In the court below, though it was not mentioned in the exceptions to the final account, it was contended that, since the heirs of R. A. Wier include his wife, and since the administrator here is seeking to set off only the claims of the children of R. A. Wier in the estate of T. B. Wier by a debt due from the said R. A. Wier, there is a want of mutuality, and therefore set-off cannot be pleaded. The authorities practically agree that the term "set-off" is very inaccurately used in this kind of case. Some of them insist that the term "right of retainer" is the better term. See Stokes v. Stokes, supra; Cheyney's Appeal (Pa.), 23 A. 1053.

The contention of appellants is, that the amount that R. A. Wier owed to his father at the time of his death, and at the time of the father's death, is more than a mere set off against his distributive share in the estate, whether this distributive share may have descended to him in person or to his representatives. Under the broad principles of equity it may be said that the administrator might use the amount due on this note in determining what R. A. Wier's real interest or share in the estate of his father was at the time of the father's death. In other words, no property could justly descend to R. A. Wier or his representatives or his assigns until his debt to the estate was paid. If this is a set-off, it is certainly an equitable set-off, and on the question of mutuality in equitable set-off, the court's attention is directed to a discussion in 34 Cyc. 633-641; Hall v. Wardell, 78 Miss. 16.

On the question as to whether or not the note under consideration is barred by the statute of limitations of the state of Texas, appellants submit the following: It will be borne in mind, as is conclusively shown by the proof, that the note is a Mississippi contract, made, executed, and delivered in Tippah county, Mississippi. We submit that no Texas statute can affect or have anything to do with the question. It is a Mississippi contract, and the rights of the parties to this suit, based on the execution of the said note, are now being adjudicated by Mississippi courts. These questions are fully settled and adjudicated in the following cases: Kennard v. Alston, 62 Miss. 763; Roberson v. Moore, 76 Miss. 89. Again, section 2556a of the Code of 1892 (3117 of the Code of 1906), has direct bearing on this question. Feld v. Coleman, 72 Miss. 545.

Spight & Street, for appellees.

Our ground of contention is want of mutuality between the claims of the estate of T. B. Weir against his deceased son, and the interest of appellees in their grandfather's estate. And it was a matter of small concern to us in this connection what difference there may be between technical set- off and "right of retainer."

The right of set-off is statutory and is permissible only where there are mutual dealings between the parties, Code 1906 Sec. 745; 25 Am. & Eng. Enc. 519, subdiv., "Requirement of Mutuality," and note 2, page 520; Ib. page 521, sec. 4; ...