Barber v. Ellis

• Decision Date: 17 November 1890
• Citation: 68 Miss. 172,8 So. 390
• Parties: GEORGE M. BARBER, ADM'R, v. REBECCA M. ELLIS
• Court: Mississippi Supreme Court

8 So. 390

68 Miss. 172

GEORGE M. BARBER, ADM'R, v. REBECCA M. ELLIS

Supreme Court of Mississippi

November 17, 1890

October 1890

FROM the chancery court of Warren county, HON. LAUCH MCLAURIN Chancellor.

The appellee is the widow of Turner M. Ellis, who, at the time of his death, in 1878, was a resident of the state of Missouri. He had formerly been a citizen of Warren county, Mississippi but during his residence there his wife and children continued to reside without the state. At the time of his death he was the owner of a small claim against the United States, the prosecution of which he had begun while in this state. The claim remained unadjusted until after his death when, in 1886, a part of it was allowed, and in payment thereof a check for $ 186.19, payable to his order, was sent by mail to his address at Vicksburg, Mississippi, where the government officials in charge of the claim supposed he was still residing. When the check reached Vicksburg, the appellant, Barber, claiming to be a creditor of Ellis applied for and obtained letters of administration upon his estate and collected the check.

Ellis left surviving him his widow, the appellee, and several children, all of them non-residents of this state. Rebecca M. Ellis, the widow, filed her petition in the chancery court in which the administration was pending, praying for an allowance out of the money in the hands of Barber, the administrator, sufficient to purchase one year's provision for herself and children as provided by § 1279, code 1880. The court directed the appraisers to set apart the allowance in accordance with her petition and they having fixed the same at $ 150, their report was confirmed by the court over the objection of the administrator, who prosecutes this appeal.

It does not appear from the record that the estate sought to be administered upon by the appellant embraced any property besides the proceeds of the aforesaid check.

Section 1279, code 1880, referred to in the argument and the opinion is as follows:--

"It shall be the duty of the appraisers of an estate to set apart, out of the stock of provisions or effects of her deceased husband on hand, one year's provisions for the widow and children who were being supported by him; and if there be no provisions or effects on hand, allowance of money to purchase provisions may be made in lieu thereof, and said appraisers shall report their proceedings to the chancery court. But the appraisers shall have reference to the articles embraced in the exempt property, and shall set apart or allow for only such...