Cutrer v. State of Tennessee

• Decision Date: 20 February 1911
• Docket Number: 14620
• Court: Mississippi Supreme Court
• Parties: J. W. CUTRER AND R. H. CRUTCHER v. STATE OF TENNESSEE

54 So. 434

98 Miss. 841

J. W. CUTRER AND R. H. CRUTCHER v. STATE OF TENNESSEE

No. 14620

Supreme Court of Mississippi

February 20, 1911

APPEAL from the chancery court, Second district of Coahoma county HON. M. E. DENTON, Chancellor.

Suit by the state of Tennessee on the relation of N.E. Leggett against J. W. Cutrer et al. From a decree overruling a demurrer to the bill, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed and remanded.

Geo Winston, for appellant.

1. The suit is on the alleged bond of P. L. Whitworth, in the probate court of Shelby county, Tennessee, as administrator C. T. A. of the estate of Mary F. Leggett, deceased appointed by said probate court; the appellants, J. W. Cutrer and R. H. Crutcher, being sued as sureties on such bond. The suit purports to be brought by the state of Tennessee on the relation only of R. E. Leggett, and without any authority or direction of the probate court of Shelby county, Tennessee, and the relief prayed is that said bond be declared to be forfeited for the breach thereof alleged in the bill, and that said administration and said appellants be required to pay the amount of said bond to the state of Tennessee for the use and benefit of the relator. The suit, therefore, purports to be a suit by the stale of Tennessee on said bond, and for the recovery by such state of the amount of the bond sued on. But such a suit could be brought by the state of Tennessee only by its proper officer, for it can act in such case only through its authorized officer, or at all events only by the direction of its probate court of Shelby county, which had the custody and control of the bond sued on and the Tennessee estate of the testatrix, and the exclusive jurisdiction to dispose of such estate. It follows, therefore, that the bill was filed without any right or authority, and that if the court below should decree the amount of the bond, or any amount to be paid by the defendants, there is no party to the suit to whom such amount could be decreed to be paid.

2. If this suit could be held to be in effect a suit by R. E. Leggett, and not by the state of Tennessee, neither the court below, nor any other court in Mississippi, had any jurisdiction of the suit, and the defendants were not liable to suit in any such court, because the suit is a suit on the bond of and against the defendant Whitworth, as the foreign Tennessee administrator C. T. A. of the Tennessee estate of Mary F. Leggett, deceased, appointed by the probate court of Shelby county, Tennessee, and the purpose of such suit is in effect to compel the settlement of such Tennessee estate by Whitworth as such Tennessee administrator and the distribution by him and his sureties on his bond as such administrator of the surplus of such estate to R. E. Leggett as an alleged legacy to him under the will of his mother. Vaughn v. Northrup, 15 Pet. 1, 10 L.Ed. 639; Wyman v. U.S. 109 U.S. 654, 27 L.Ed. 1068; Brown v. Fletcher's Estate, 210 U.S. 82, 52 L.Ed. 966; Boyd v. Lambeth, 24 Miss. 433 and 437; Riley v. Mosely, 44 Miss. 37; In re Estate of Crawford, 68 Ohio St. 58, 67 N.E. 156; Sturdevant v. Newell, 27 Miss. 157; Morris v. Morris, 27 Miss. 850; Williams v. Benedict, 8 How. 107, 12 L.Ed. 1007; Wilson v. Hartford Ins. Co., 164 F. 817; Young v. Lavender, 21 Wall. 276, 22 L.Ed. 536; Boyd et al. v. Lambeth, 24 Miss. 433; Low v. Bartlett, 8 Allen 259; Pickering v. Fisk, 6 Vt. 102; Thornton v. Glover, 25 Miss. 133; Edwards v. Kelly, 83 Miss. 144; Dobbins v. Halface, 52 Miss. 561; Whitfield et al. v. Billups, 56 Miss. 489, 495.

D. A. Scott and Bedford & Allen, for appellee.

By the first ground of the demurrer, it is contended that the suit is improperly brought in the name of the state of Tennessee. Section 3072 of Miliken & Vertress (Tenn.) Code, it is distinctly provided that suits upon bonds payable to the state of Tennessee may be brought in the name of the state by any interested parties. This point is expressly decided in the case of Brannon v. Wright, 84 S.W. 612.

In our own state the suit is likewise brought in the name of the state. Hause v. State, 54 Miss. 646; Wolf v. State, 59 Miss. 339; Patty v. Williams, 71 Miss. 612.

By the second ground of the demurrer it is contended that the suit should have been filed in the chancery court of the second judicial district of Bolivar county, Mississippi. The defendants evidently rely on section 561 of the Mississippi Code of 1906, which provides that "suits against executors, administrators and guardians touching the performance of their official duties, and suits for an account and settlement by them and for the distribution of personalty of decedent among the heirs and distributees, and suits for the payment of legacies, shall be brought in the chancery court in which the will was admitted to probate, and letters of administration were granted or the guardian was appointed."

It is sufficient answer to this objection to point out to the court that this is not a suit against an administrator appointed by a Mississippi court, but is a suit based upon the appointment of an administrator by the court of Tennessee and the sureties on his bond given in that state. Were the suit based upon the appointment of an administrator by a Mississippi court, undoubtedly the court in which the will was admitted to probate would be the proper tribunal in which a suit upon the administrator's bond is brought; but, as stated, this being based upon the appointment of the administrator by the Tennessee court, the administrator and the sureties on his bond being residents of Mississippi and the funds traced into Mississippi, the suit should be brought in the county in which the parties are found.

It is earnestly insisted by the third and fourth grounds of the demurrer that no suit may be maintained in any court in Mississippi, or any court in any other state, other than the probate court of Shelby county, Tennessee, by which the administrator was appointed. It is undoubtedly the general rule that an administrator may not sue, nor be suable, in any court outside of the state of his appointment; but peculiar cases arise in which if this rule were universal, there would necessarily result a total failure of justice. An interesting case upon this subject is that of McNamara v. Dwyer, decided in the Supreme Court of New York (7 Paige, ch. 239; 32 A. D. 627). Evans v. Tatem, S. & R. (Pa.) 252, 11th A. D. 717; Dowdle's case, 6 Co. 46; Atchison's Heirs v. Lindsey et al., 6 B Monroe (Ky.) 86, 43 A. D. 153; Johnson v. Jackson, 56 Ga. 326, 21 Am. Rep. 285; Bell v. Suddoth, 2 S. & M. 532; Laughlin v. Solomon, 180 Pa. State 177; Worten v. Howard, 2 S. & M. 530; Magee v. Gregg, 11 S. & M. 70; Magee v. Harrington, 13 S. & M. 403; Dean v. Nunnally, 36 Miss. 358; Dobbins v. Halface, 52 Miss. 561.

MAYES, C. J. SMITH, J., dissenting.

OPINION

MAYES, C. J.

This appeal is before the court from a decree of the chancellor overruling a demurrer to the bill. Suit was brought in the name of the state of Tennessee, on relation of Robert Eugene Leggett, and is for his use and benefit. The defendants are J. W. Cutrer and R. H. Crutcher, residents of the second judicial district of Coahoma county, where the suit was filed, and P. L. Whitworth, a resident of the first judicial district of the same county. The chief allegations of the bill are that the mother of complainant, one Mary E. Leggett executed a last will and testament on the 27th day of March, 1994; she then being a resident of the second judicial district of Bolivar county. A short time after the will was executed Mrs. Leggett died, and on the 30th day of May, 1904, her last will and testament was duly probated in the second judicial district of Bolivar county, which place was her residence at the date of her death, and by the will she left complainant the sum of two thousand, two hundred dollars, to be paid in cash. The will is made an exhibit to the bill. It is further alleged that at the date of Mrs. Leggett's death she had in cash only two thousand, one hundred fifty-nine dollars and sixty-nine cents, and this sum was on deposit in Shelby county, Tennessee, in the State National Bank of the city of Memphis, and that this was the fund intended by her to be given to complainant. It is then alleged that some time in July, 1904, Peter L. Whitworth went to the state of Tennessee and applied for and obtained letters of administration on the estate of Mrs. Leggett in that state from the probate court of Shelby county, Tennessee, and in compliance with the law of that state executed a bond for the faithful performance of his duties as administrator, with J. W. Cutrer, R. H. Crutcher, and J. R. Crutcher as sureties. After executing the bond the State National Bank paid over to Whitworth the two thousand, one hundred fifty-nine dollars, and sixty-nine cents then in the bank to the credit of Mrs. Leggett's estate and alleged to have been left to the complainant by the will. The bill further alleges that, immediately upon receiving this money, Whitworth, acting with the knowledge and consent of his codefendants and without procuring an order of the probate court of Tennessee, wrongfully removed the entire fund into the state of Mississippi and deposited it in the First National Bank of Clarksdale, wherein Cutrer was the president and a stockholder and R. H. Crutcher was cashier. It is further alleged that, after bringing the money into the state of Mississippi and depositing it with the Bank of Clarksdale, all of the money was afterwards drawn out of the bank by Whitworth and used by him with the knowledge, consent and advice of Cutrer and Crutcher, and that no part of the same was ever paid to complainant, or any one for him. It is further alleged that...