Crescent Furniture & Mattress Co. v. Morgan
| Decision Date | 22 March 1937 |
| Docket Number | 32120 |
| Citation | 173 So. 290,178 Miss. 824 |
| Parties | CRESCENT FURNITURE & MATTRESS CO. et al. v. MORGAN et al |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled June 14, 1937.
APPEAL from the chancery court of Adams county HON R. W. CUTRER, Chancellor.
Proceeding in the matter of the estate of H. L. Morgan, deceased wherein the Crescent Furniture & Mattress Company and others, creditors, excepted to the final account filed by Howard L. Morgan, administrator, and others. From a decree, creditors appeal. Reversed, and decree entered.
Reversed, and decree entered.
Brandon & Brandon, of Natchez, for appellants.
The administrator herein had no authority to conduct the business of the deceased as a going concern.
Sections 320 and 328, Code of 1930.
Under the rules of the chancery courts of the State of Mississippi, which the Chancellor in this instance was required to observe and of which the attorneys for the administrator had full knowledge, the order or decree authorizing conduct of the business could not have been signed, and hence was not filed, docketed or entered.
The so-called vacation decree authorizing the conduct of the business could certainly have no effect when withheld from filing, entry, and recordation.
Griffith's Chancery Practice, sees. 97, 621 and 624; Sagory v. Bayless, 13 S. & M. 153; Howard v. Jayne, 124 Miss. 65, 86 So. 752; Evans v. State, 144 Miss. l, 108 So. 725; Board of Suprs., Forest County v. Steele, 124 Miss. 340, 86 So. 810; Harper v. Raisin Fertilizer Co., 48 So. 589; Lewis v. Martin, 98 So. 635; Chipwood v. White, 92 So. 84.
Granting for the sake of argument that the administrator had authority to conduct the business, yet he exceeded his authority under the statute and is liable for loss sustained.
It shall be the duty of an executor or an administrator to speedily pay the debts due by the estate out of the assets, if the estate be solvent; but he shall not pay any claim against the deceased, unless the same has been probated, allowed, and registered.
Section 1674, Code of 1930; Lehman & Co. v. Powe, 95 Miss. 446, 49 So. 622.
The general principles of law which involve this administrator in liability for this wrongful continuation of business beyond said period of one year is as aptly stated as can be done under the titles of Executors and Administrators, 11 Ruling Case Law, sec. 143, page 136.
Taxes on real estate totaling $ 373.61 should be charged to the administrator, for the only authority which the administrator has to pay taxes is that provided by section 1675 of the Code of 1930, which provides that: "An executor or administrator shall pay all taxes that may be due on real and personal property belonging to the estate."
This statute authorized the payment of taxes for the year 1929; but, this decedent having died intestate, the land descended to his heirs and the taxes thereon for the year 1930 were payable by the heirs and not by the estate or the administrator thereof.
That the administrator had no authority to purchase at his own sale has been many times held by this court.
Matthews v. Matthews, 1 So. 741; Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Pearson v. Moreland, 7 S. & M. 609; McGowen v. MeGowen, 48. Miss. 553.
The court in rendering its decree and restating the administrator's account failed to charge the administrator with any interest, either for monies on hand by him held or wrongfully withdrawn or retained or otherwise. We respectfully submit that the Special Master correctly charged the administrator with interest: on the sums of money which had been by the administrator withdrawn and paid over to himself as for "salary," and that the court below was in error when in stating the account of the administrator by its final decree it failed to charge the administrator with interest on such illegal and unauthorized withdrawals.
The subject of allowance of fees, compensation, and commissions is governed by our statute, section 1740, Mississippi Code of 1930.
We respectfully submit that, call it salary, fees, commissions, compensation, or what not, an administrator cannot be allowed in any event in excess of seven per centum of "the amount of the estate administered."
Where an administrator has breached his trust, he is chargeable with the losses resulting to the estate and in addition thereto for other unauthorized payments and expenditures and for interest on all.
Powell, Harper & Jiggitts, of Jackson, for appellee, Surety.
The decree authorizing the continuance of the business states: "This cause coming on for hearing on petition filed herein by the administrator." The order shows plainly that it was granted upon a petition which had been filed, and the order specifically states that the petition had been filed.
This court has held that where the decree recites the fact that the petition had been filed, then such recital is conclusive of that fact.
Bank of Meadville v. Hardy, 94 Miss. 587; G. & S. I. R. R. Co. v. Riley, 104 So. 81; Eastman-Gardner Co. v. Leverett, 141 Miss. 96; Cason v. Cason, 31 Miss. 578; Dulion v. Folkes, 120 So. 437, 153 Miss. 91.
Although the administrator would not have the right to conduct the business beyond one year, still if he did this, he then placed himself in the position of a fiduciary or trustee. He would become responsible to the estate for any losses, if any. However, if there were no losses, there would be nothing for the estate to recover against him, and if, e contra, he actually shows a profit, there could not possibly be any claim against him.
An administrator was properly allowed credit for taxes paid on lands owned by the decedent at the time of his death.
Davis v. Blumenberg, 104 Miss. 432.
An executor or administrator shall pay all taxes that may be due on real and personal property belonging to the estate.
Section 1675, Code of 1930; Tonnar v. Wade, 153 Miss. 722, 121 So. 156; Bowers v. Williams, 34 Miss. 324.
Since the administrator undoubtedly had the right to conduct the business, the statute gave him the right to replenish the stock by purchase of goods from time to time. The administrator testified that he only purchased goods necessary for conducting the business and making possible the sale of the stock already on hand.
The decree of a chancellor will not be disturbed on the facts unless it is manifestly wrong.
Heard v. Cottrell, 100 Miss. 42; Lot v. Hull, 104 Miss. 308; Bank of Lauderdale v. Cole, 111 Miss. 39; Johnson v. Yazoo County, 113 Miss. 435; Wilbur v. Falls, 120 Miss. 201; M. & O. Oil Co. v. Campbell, 114 Miss. 803.
As to the mortgage notes the law is clear that the administrator shall protect the land even to paying the mortgage liens.
As to the real estate, since the administrator was compelled to keep same, he was legally bound to pay taxes for the year 1930 to protect same.
Tonnar v. Wade, 153 Miss. 722.
Since an administrator is entitled to commissions, it is an analogous situation when he conducts the business, giving his entire time to it.
Walton v. Walton's Estate, 143 Miss. 666.
The chancellor had full authority to allow the administrator a commission. In fact he had full authority to allow him a seven per cent commission.
Walton v. Walton's Estate, 143 Miss. 766; Section 1740, Code of 1930.
The liability of surety company should not be fixed in proceeding for final accounting by executor or administrator.
Walton v. Walton's Estate, 143 Miss. 666; Hemingway's Code, section 1795.
Argued orally by Gerard H. Brandon, for appellant, and by Louis M, Jiggitts, for appellee.
This appeal is prosecuted from a decree of the chancery court of Adams county approving the final account of the administrator as stated by the court, after the hearing of objections and exceptions thereto.
The questions involved are whether or not proper charges and credits have been made and allowed in the lower court. There are numerous exceptions which we will not undertake to set forth at length in this opinion.
H. L. Morgan died intestate on September 17, 1929, unmarried (having been divorced), and Howard Morgan, a son by a first marriage, qualified as administrator of his father's estate on September 18, 1929, furnishing bond in the sum of $ 10,000 with the Royal Indemnity Company as surety thereon. Appraisers were appointed, and on September 30, 1929, they made an appraisement showing that Morgan, in his lifetime, was engaged as a merchant in the installment sale of furniture. This appraisement; was not filed until January 9, 1930. The administrator finally filed his inventory, after being cited so to do, on February 10, 1930. It was substantially the same as the appraisement.
From the date of his appointment, the administrator continued to operate the business for about eighteen months, buying approximately $ 6000 worth of new goods and employing clerks and other help. The stock of goods on hand at the death of the intestate was appraised and inventoried at around $ 8000. The major portion of the estate, so far as the book value was concerned, consisted of more than 500 installment accounts for furniture sold on credit, with contract to repossess on failure to pay. The record discloses that on October 9, 1929, the administrator petitioned the court to be permitted to operate the business as provided by section 1682, Code 1930. Interested parties resisted this motion, and it was never disposed of by the court.
It appears that on June 13, 1930, a decree bearing the signature of the chancellor and dated September 21, 1929, was filed in the chancery court...
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