Columbus Insurance & Banking Co. v. Humphries

• Decision Date: 31 January 1887
• Citation: 64 Miss. 258,1 So. 232
• Court: Mississippi Supreme Court
• Parties: COLUMBUS INSURANCE AND BANKING COMPANY ET AL. v. A. S. HUMPHRIES ET AL

1 So. 232

64 Miss. 258

COLUMBUS INSURANCE AND BANKING COMPANY ET AL. v. A. S. HUMPHRIES ET AL

Supreme Court of Mississippi

January 31, 1887

APPEAL from the Chancery Court of Lowndes County, HON. F. A. CRITZ Chancellor.

A. S Humphries, Sr., died in 1873, testate, having appointed his son, W. D. Humphries, and Abram Murdock his executors. W. D Humphries was also made guardian of the minor children, and W. D. Humphries and H. G. Humphries trustees for the management of the legacies bequeathed to the children. After disposing of his estate and giving large legacies to each of his several children, among whom were Abram S. Humphries and Mrs. Mary E. Tucker, the will provides as follows:

"Item 12. I hereby direct and empower and authorize my executors hereinafter named to wind up and settle my estate, and direct that no hasty settlement shall be made; and to bring about and arrange said settlement my executors are hereby authorized and empowered to sell all or any portion of the same either by private or public sale as they in their judgment shall deem best, and on such terms as they deem best to all concerned, and my said executors are hereby authorized and empowered to execute and deliver deeds and title to any purchaser or purchasers of the same."

"Item 13. I hereby nominate, constitute, and appoint my son, W. D Humphries, and friend, Abram Murdock, executors of this my last will and testament, with full and complete power to carry out the provisions of the same, and request that they shall not be required to give security as such."

"Item 8. It is my will and desire, and I direct that the special legacies hereinbefore devised shall be paid over to the said legatees in the common currency of the country at the time of payment, and that said legacies shall be paid the said legatees by my said executors out of my estate, as soon as it can be conveniently done without detriment to my estate."

On May 4, 1886, Abram S. Humphries having had his disabilities of minority partially removed, filed this bill in equity. The bill sets out that the will was duly probated, and that W. D Humphries and Abram Murdock qualified as executors; that in December, 1873, Abram Murdock pretended to resign, but gave no notice of his application for discharge, and was never legally discharged; that W. D. Humphries is now insolvent, has been removed as executor, and his letters cancelled; that the legacy due complainant has never been paid, but that the legacy to Mrs. Mary E. Tucker has been more than paid by way of advancements; that complainant has just reached the age of nineteen years, and is not familiar with his father's estate and the actions of the executor, and describes a large amount of real and personal property which complainant believes to have belonged to the estate of the testator, A. S. Humphries, deceased; that W. D. Humphries, as executor of this estate, collected ninety-six thousand four hundred and twenty-six dollars; that he foreclosed a deed of trust made by one W. B. Richie to secure a large sum of money due said estate, and, as executor of this estate, he bought certain lands in Lowndes County, Miss., and Pickens County, Ala. (here described), and took the deed in his name as said executor; that one F. T. Weaver claims to be the owner of this real estate, situated in Lowndes County, Miss., and Pickens County, Ala., and holds a deed to the same executed December 12, 1876, by W. D. Humphries, executor of the estate of A. S. Humphries, deceased; that W. D. Humphries had no authority to execute this deed, and that it is a cloud upon the title of the estate of A. S. Humphries, deceased; that W. D. Humphries appropriated the proceeds, upward of two thousand dollars, received for this land, to his own use; that W. D. Humphries owned an undivided one-third interest in a store-house, and that he purchased the other two-thirds interest with the funds of the estate, and took the deed in the name of his wife, Mrs. R. D. Humphries, who had no separate estate or resources; that, as to certain other lands (here described), John F. and R. F. Hudson claim some interest in them, but on a settlement of the partnership business that had previously existed between the Hudsons and the decedent, the Hudsons will be found to be largely indebted to the estate; that as to certain other lands (here described) that W. D. Humphries did make deeds, so-called, to sundry persons, all of whom are not known to complainant, but he is informed that "W. D. Humphries and his wife, Mrs. R. D. Humphries, John Fenton, Jerry Humphries, George Cook, R. E. Moore, C. A. Johnston, the First National Bank of Columbus," etc., etc., etc., claim to have some interest in some parts of such lands; that their claims are without any validity, and the lands belong to the estate of A. S. Humphries, deceased, and such claims cast a cloud upon the title; that W. D. Humphries without authority exchanged one hundred and thirty shares or certificates of stock in the Columbus Insurance and Banking Company with Mrs. E. G. McCabe for fifteen bonds of the Mobile and Ohio Railroad Company, and that the certificates of bank-stock are still in the hands of Mrs. McCabe; that the estate owned five hundred and twenty-six shares of stock in the Mobile and Ohio Railroad Company, the whereabouts of which complainant is unable to learn without a discovery from W. D. Humphries and the Mobile and Ohio Railroad Company, and that the same is true as to certain stocks in the Columbus Gas Company, and Columbus, Fayette and Decatur Railroad Company; that the business of the firm of Humphries & Hudson, composed of A. S. Humphries, Sr., and J. F. and R. F. Hudson, was, after the death of the first named, carried on by W. D. Humphries and the Hudsons, and at A. S. Humphries' death the firm was indebted in a large sum to him, which complainant is informed and believes was about thirty-three thousand three hundred and sixteen dollars and thirty-five cents; that September 19, 1879, W. D. Humphries, being indebted as executor to the said Humphries' estate in the sum of sixty-eight thousand two hundred and seventy dollars and thirty-three cents, executed a deed of trust on a large quantity of real and personal property (here described) to secure its payment, but that complainant is unable to learn where this property is without a discovery from W. D. Humphries, those interested in it, or the purchasers of it, the names of whom the bill proceeds to enumerate. The bill then states that in order to get this estate together and preserve it against sales and disposals pending this litigation, it is necessary to have injunctions and other remedial writs, and to have a receiver or receivers appointed. The bill prays that W. D. Humphries, F. D. Weaver, Mrs. R. D. Humphries, Mrs. E. G. McCabe, the Mobile and Ohio Railroad Company, the Columbus Insurance and Banking Company, and various and sundry other persons who had dealt with the executor or the trustee in the deed of trust given by the executor, be made parties defendant; that a discovery be required of those of whom it is alleged to be necessary; that the titles to all said property, real and personal and choses in action, be quieted and confirmed to said estate, and all clouds, doubts, and suspicions removed; that the trust-deed above referred to be enforced; that injunctions and other necessary remedial writs be granted; that a receiver be appointed, and such other and further relief be granted as may be necessary.

Mrs. Mary E. Tucker answered, denying that she had ever received any part of her legacy, and making her answer a crossbill against the complainant and defendants in the original bill. This cross-bill embraced substantially the same persons and subjects involved in the original bill.

Miss Fannie A. Tucker filed a petition in which she set out that Mrs. E. T. Humphries was one of the legatees named in the will of A. S. Humphries, deceased; that Mrs. E. T. Humphries, having died, left by will to petitioner an annuity to be paid out of the legacy due the said Mrs. E. T. Humphries from the estate of A. S. Humphries, deceased; that the legacy has never been paid to Mrs. E. T. Humphries' representatives, and that petitioner's annuity is due and in arrear. The petition prays that the petitioner be made a party complainant to the original bill. The Chancellor granted the petition.

The defendants demurred to the original bill and cross-bill on the ground of multifariousness, want of equity, and many other special grounds not necessary to mention here. The demurrers were overruled, and the defendants, F. T. Weaver, Mrs. Lucy J. Sparks, Mrs. E. G. McCabe, the Columbus Insurance and Banking Company, the Mobile and Ohio Railroad Company, and the Georgia Pacific Railroad Company, appealed.

Reversed and remanded.

Orr & Sims, for the appellants, E. G. McCabe, the Columbus Banking and Insurance Co., and the M. & O. R. R. Co.

1. Redfield says that "no proposition in law is better established than that the personal representative may sell any or all the personal estate of the deceased." 3 Redfield on Wills 226.

"An executor may sell choses in action belonging to the estate at a discount without raising any implication of fraud." 3 Redfield 236.

"An executor may mortgage the legal or equitable assets, or choses in action, or pledge any part of the assets for the purpose of better enabling him to administer the estate, and it is of great consequence that no rule should be laid down which may impede executors in their administration, or render their disposition of the testator's effects unsafe or uncertain to a purchaser. His title is complete by sale and delivery; what becomes of the price is of no concern to him. And this applies to mortgages, pledges, and to...