Ferguson v. Carr

• Citation: 107 S.W. 1177,85 Ark. 246
• Parties: FERGUSON v. CARR
• Decision Date: 20 January 1908
• Court: Supreme Court of Arkansas

107 S.W. 1177

85 Ark. 246

FERGUSON v. CARR

Supreme Court of Arkansas

January 20, 1908

February 17, 1908, Opinion Delivered

Appeal from Hempstead Circuit Court; Yacob M. Carter, Judge affirmed.

Reversed and remanded.

McRae & Tompkins, for appellants.

1. The court erred in permitting the complaint to be amended so as to state a cause of action accruing after the commencement of the suit. 1 Cyc. 744; 14 Ark. 427; 24 Ala. 130; 60 Am. Dec 453; 1 Am. Cent. Dig. col. 1493, § 735.

2. The heirs cannot sue. The act of March 13, 1899 (Acts 1899, p. 49), Kirby's Digest, § § 46, 53, was passed pursuant to the court's suggestion in Brice v. Taylor, 51 Ark. 75, and provides an expeditious and simple method of procedure, and operates ass repeal of section 215, Kirby's Digest.

W. C. Rodgers, for appellee.

1. The order of the probate court directing the administrator to pay the plaintiffs the amount found due them as heirs at law of John Cart was a judgment of a superior court of record having jurisdiction of the subject-matter, and is conclusive, not subject to collateral attack, and no demand upon the sureties was necessary. 48 Ark. 263; 15 Ark. 175; 46 Ark. 260; 14 Ark. 170; 49 Ark. 311; 44 Ark. 267; 11 Ark. 519; 31 Ark. 74; 54 Ark. 480.

2. The demurrer admits the allegations of the complaint, but cannot bring into question the want of capacity in the heirs to sue on account of infancy, since it is nowhere alleged that they are infants, and it will not be presumed. Rodgers on Dom. Rel., § 681; 31 Ark. 58; 75 Ind. 401. If the allegations of the complaint are true, appellees, being entitled to their money, have the right to go into the courts to enforce its payment. This case does not come within the terms of the Acts 1899, p. 49, and that act is no repeal of section 215, Kirby's Digest.

3. No answer having been filed, it was proper to file the amendment. Moreover the amendment was but a more definite statement of the cause of action. The object of the Code provisions with reference to amendments is the trial of cases upon the merits. They are broad and liberal and so to be construed. Kirby's Digest, § 6143; 42 Ark. 57; 64 Ark. 253; 42 Ark. 57.

OPINION

MCCULLOCH, J.

This is an action instituted in the circuit court of Hempstead County by the appellees, Martin Carr and Catherine McMahon, two of the heirs at law of John Carr, deceased, against the appellants, James R. Ferguson as public administrator of the estate of Said decedent and the sureties on his official bond as sheriff (no bond having been given as administrator) to recover their distributive shares of the funds belonging to said estate left in the hands of said administrator after payment of the debts of the estate. The complaint, after setting forth appropriate allegations concerning the death Of said John Cart and the heirship of appellees, that appellant Ferguson was sheriff of Hempstead County with his co-defendants as sureties on his official bond as such sheriff, and that, by virtue of his office as public administrator, he became administrator of the estate of said decedent and entered upon the discharge of his duties as such administrator, contained the following further allegation, viz: "That on the 15th day of July, 1903, the said probate court of Hempstead County, Arkansas, ascertained judicially, having at the time jurisdiction of the subject-matter and the person of the said James R. Ferguson as public administrator of the estate of John Carr, deceased, upon a settlement with said James R. Ferguson, public administrator, that the said James R. Ferguson, as such public administrator, was indebted to the estate of said John Carr, deceased, in the sum of $ 1,217.82 after all debts of said estate were paid, and directed him to pay said sum into the probate court for the heirs aforesaid of said John Carr. That said James R. Ferguson has never paid over to the estate of said Martin Carr, or to his heirs, the sum of $ 1,217.82, or any part thereof, neither has any other person for him paid said amount, in whole or in part."

Said order of the probate court is exhibited with the complaint. The complaint also alleges that the two appellants are entitled each, to one-sixth interest in the estate of said decedent.

The court sustained a demurrer to this complaint, and appellees then filed an amendment alleging that the probate court had, on January 21, 1907, which was subsequent to the commencement of this action, made and entered an order ascertaining that said administrator had in his hands the sum of $ 1,134.47 of funds belonging to said estate after payment of all debts and directing the payment to each of the appellants of the sum of $ 189.07 as distributees. Appellants demurred to the amended complaint, and the court overruled the demurrer, and rendered final judgment in favor of appellees for the amount so directed to be paid over to them; the appellants having declined to plead further.

It is insisted by appellants, in the first place, that the statutes of this State do not authorize a suit to be brought by the distributees of an estate to recover from the administrator and his sureties the amount of distributive shares ordered by the probate court to be paid over to them. We cannot sustain that contention. The statute (Kirby's Digest, § 215) expressly authorizes suit on the bond of an administrator at the instance of any legatee, distributee, creditor or other person interested. The statute in question, which was a section of the Revised Statutes, was amended by the act of March 13, 1899, so as to allow suit to be brought by an administrator in succession where the estate has not been fully administered and the former administrator shall have died, resigned or been removed; but this did not operate as a repeal of the provision of the former statute authorizing suit to be brought by a distributee, creditor or other person interested. It is only, however, where the probate court has ascertained the amount in the hands of an administrator and ordered payment to a distributee that he can sue for the amount ordered to be paid over. George v. Elms, 46 Ark. 260; State v. Roth, 47 Ark. 222, 1 S.W. 98; Euper v. State, ante, p. 223.

The probate court alone has jurisdiction to ascertain the amount in the hands of an administrator and to order the distribution of funds (State v. Roth, supra); and the failure of an administrator to comply with an order of distribution is such a breach of the terms of his bond as will warrant a suit against him and his sureties by a distributee for recovery of the distributive share so ordered paid.

The original complaint did not allege that an order of distribution to the heirs had been made by the probate court and the circuit court properly sustained a demurrer to the complaint. It set forth an order of the probate court ascertaining the amount of funds in the hands of the administrator and directing him to pay the same into court for the benefit of the heirs. This, however, was not an order of distribution, nor was it tantamount thereto. It left the funds within the control of the probate court, and did not ascertain and adjudge who the legal distributees were. That order was not, therefore, sufficient to clothe the heirs with authority to maintain a suit on the bond to...