Ewing v. Warren

• Decision Date: 24 May 1926
• Docket Number: 25598
• Citation: 144 Miss. 233,109 So. 601
• Court: Mississippi Supreme Court
• Parties: EWING et al. v. WARREN et al. [*]

109 So. 601

144 Miss. 233

EWING et al. v. WARREN et al. ^[*]

No. 25598

Supreme Court of Mississippi

May 24, 1926

Division B

On Suggestion of Error, Sept. 27, 1926.

1. DESCENT AND DISTRIBUTION. Stock in Mississippi corporation owned by person domiciled in Minnesota at time of death, has its situs in Mississippi, and distribution is controlled by law of state (Hemingway's Code, section 1380).

Property consisting of shares of stock in Mississippi corporation owned by person domiciled in Minnesota at time of death, has its situs in Mississippi, and distribution is controlled by Hemingway's Code, section 1380.

2. DESCENT AND DISTRIBUTION. Shares of stock in Louisiana corporation, doing business and domesticated within Mississippi, have their situs for devolution purposes in Mississippi (Hemingway's Code, sections 4089, 4090, 4091).

Shares of corporate stock in Louisiana corporation, located and doing business principally in Mississippi, and domesticated under Hemingway's Code, sections 4089, 4090, 4091, have their situs for devolution purposes in Mississippi.

3. DESCENT AND DISTRIBUTION. Money, deposited in bank within state, belonging to person domiciled in another state at time of death, will be distributed under Mississippi law (Hemingway's Code, section 1380).

Money deposited in bank within state, belonging to estate of person domiciled in another state at time of death, will be distributed in accordance with Hemingway's Code, section 1380.

4. EXECUTORS AND ADMINISTRATORS. Property of person domiciled in another state at time of death, located elsewhere than in Mississippi, should be turned over by Mississippi administrator to administrator in the other state for distribution.

Property belonging to estate of person domiciled in another state at time of death, located elsewhere than in Mississippi, should be turned over by Mississippi administrator to administrator in such other state to be distributed in accordance with laws of that state.

5. BANKRUPTCY. Conversion of property by deceased's husband, while acting as administrator and after he had been adjudged bankrupt, could not be charged against trustee's interest.

Conversion of property by deceased's husband, while acting as administrator and after he had been adjudged bankrupt, could not be charged against interest of trustee in estate, and the trustee's interest would not be affected, except as interest would be proportionately reduced in accordance with shrinkage of estate on account of wrongful appropriation.

6. BANKRUPTCY. Any balance of interest of deceased's husband paid to his trustee in bankruptcy after payment of debts held properly ordered to be turned over to satisfy money decree rendered against bankrupt for wrongful appropriation while acting as administrator.

Where deceased's husband, while acting as administrator, wrongfully appropriated property of the estate, after having been adjudged bankrupt, any balance of his interest remaining after trustee had paid debts of bankrupt held properly ordered to be turned over to satisfy personal money decree rendered against bankrupt in favor of heirs of estate for wrongful appropriation.

7. EXECUTORS AND ADMINISTRATORS. Estate properly held liable for value of diamonds which wife agreed, on separation with husband, to give to children on their becoming of age, or in case she remarried before certain time, where she remarried' before stipulated time, but failed to deliver diamonds before death.

Where wife, after agreement on separation with husband that she would deliver certain diamonds to minor children on their becoming of age, or in case she remarried before certain time, married before expiration of time, but did not turn diamonds over to children and kept them until her death, such contract being valid, her estate was properly held liable to children for their value.

8. EXECUTORS AND ADMINISTRATORS.

Personal decree against deceased's husband for money and value of diamonds which he wrongfully appropriated while acting as administrator held properly rendered.

9. APPEAL AND ERROR. Case having originally been argued and decided on theory of correctness of chancellor's finding, court will decline, on suggestion of error, to consider point that finding has no support. Case having originally been argued, considered, and decided, on appeal as to law, on theory that chancellor's finding that foreign corporation had become domesticated was correct, court will, in its discretion, decline to consider, on suggestion of error, point then first raised that there is no basis in the record for the finding.

APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH, Chancellor.

Proceeding between Wm. L. Ewing and others and H. O. Warren and others involving a question of situs and distribution of certain personal property of Mrs. Ola D. Warren, deceased. From the decree, Wm. L. Ewing and others appeal. Affirmed.

Decree affirmed. Suggestion of error overruled.

White & Ford, for the Mississippi Administrator.

The entire case has narrowed down to the question of what property of the estate, if any, should be turned over to Miller, trustee, or to the City National Bank, administrator, in Minnesota. We contend none of it should be removed from Mississippi.

The learned lower court directed that the administrator here retain possession and distribute the property having a situs in Mississippi except the one-fifth interest of H. O. Warren therein should be turned over to Miller, trustee in bankruptcy. We appeal from this insofar as turning it over to the trustee is concerned. The court further directed that as to personal property in the hands of the Mississippi administrator not having a situs in Mississippi, that it should be turned over to the bank, the Minnesota administrator.

We submit that: (1) The lower court was in error in decreeing that the one-fifth interest of Warren in the estate of Mrs. Warren be turned over to the trustee in bankruptcy; and (2) the court was in error in decreeing that the bank, administrator, take the stocks not having a situs in Mississippi.

I. As to the trustee: It cannot be argued that Warren had any vested rights in the estate of Mrs. Warren, but only a right upon distribution of the estate, and after payment of debts of her estate, to his proportionate part. Now the decree would apply Mrs. Warren's estate to the payment of Warren's debts, prior to the payment of claims against Mrs. Warren's estate.

The point we desire to impress on the court is that the property sought to be turned over to the trustee is no property of Warren's. He is largely indebted to the estate and the estate owes him nothing. He embezzled the property of the estate to an extent larger than his interest might be on distribution and yet the court orders his one-fifth share turned over to the bankrupt court. Therefore, Mrs. Warren's estate and the property of the four children would be used in paying the debts of Warren.

The lower court ordered the property having a situs here turned over to the trustee at an improper time. Warren has never had any vested interest to any part of the estate and cannot have until distribution. 3. R. C. L., p. 231.

The trustee, under this authority, could take only what the bankrupt held, and he held nothing, because his indebtedness to the estate was much larger than his share. Warren has gotten his share, in the estate and more.

It is clear that the bankrupt could not maintain the suit to recover what the trustee is here trying to recover, first, because there has been no distribution; and, second, because he owes the estate. This being so, it is indispensable that it be alleged and shown by the trustee that the funds or property in his hands are insufficient to pay the debts. 3 R. C. L., p. 269; Drew v. Meyers, 17 L. R. A. (N. S.) 350 (Neb.).

The title of property in other states is not in the trustee nor the administrator, and trustee is only entitled to unpaid legacy. 5 Am. Bankruptcy Rep., 1. Until the estate is settled the heirs are not actually entitled to any of the personal property belonging to the estate. The heir has no title to the personal estate, but merely a right to a distributive share in the surplus after payment of debts and expenses of administration. 11 R. C. L., sec. 162.

The right of the heir to the distributive share vests immediately. 11 R. C. L., sec. 162. But only the vested interest, and he has no title to the corpus of stocks and bonds. Marvin v. Wagner, 77 N.W. 44. Of course the legal title is in the administrator and the equitable title in the heir.

It seems idle to present now to this court the proposition that the situs of the corporation is the situs of the share of stock and that the stock for purposes of administration is distributable according to the laws of Mississippi. The case of Jane v. Martinez settles this point.

The effect of section 1648, Code of 1906 (section 1380, Hemingway's Code), is to abolish ancillary administrations. In this state, administration of the effects here of a deceased person, no matter where his domicile was, is independent of all other administrations, and to be conducted in all respects as if the decedent had been a citizen of this state when he died. Debts are to be paid according to the assets and any surplus is to be distributed here. All creditors, no matter where residing, nor where the debts were contracted, are entitled to prove their claims here and proceed in our courts to enforce and share in the assets here. Carroll v. McPike, 53, Miss. 569.

The place of residence of a debtor who owes for rent of land situated in Mississippi is the situs of the debt for administration. Neblett v. Neblett, 112 Miss. 550; Richardson v. Neblett, 122 Miss. 723. The...