Hancock's Estate v. Pyle
| Decision Date | 19 February 1940 |
| Docket Number | 33956 |
| Citation | 193 So. 812,186 Miss. 801 |
| Parties | HANCOCK'S ESTATE, et al. v. PYLE et al |
| Court | Mississippi Supreme Court |
APPEAL from the chancery court of Union county HON. JAMES A. FINLEY Chancellor.
Proceeding by Mrs. Thelma McClellan against the estate of W. I. Hancock deceased, for the administration of the estate, wherein L. A Pyle was appointed administrator, and wherein Mrs. Bird Hancock and other heirs filed a contest. From the decree the estate of W. I. Hancock, deceased, and Mrs. Bird Hancock and others appeal. Reversed and remanded.
Reversed and remanded.
Marvin Crawford, of New Albany, for appellants.
The public policy of the State of Mississippi with respect to the distribution of estates is favorable to family agreements and to the settlement of estates out of court.
Williams v. Williams et al., 187 So. 209; 23 C. J. 1002, note 60; Henderson v. Clark, 27 Miss. 436; Sec. 1629, Miss Code of 1930.
As to who may contest the petition for the appointment of an administrator, a careful examination of the cases in Mississippi has not produced much authority on this question. The case of Thompson v. Carter's Estate, 177 So. 356, was the case cited by counsel on their demurrer and apparently was the authority on which the chancellor based his decision. It is respectfully submitted that that case is an authority in the case at bar, but that it is an authority in this case in favor of the contesting heirs and not in favor of the administrator and petitioning creditor, the appellees, because the Thompson case held, "In order for the appellant (petitioning creditor) to have the right to request the appointment of an administrator for Carter's estate, it must appear that Carter died owing a debt to the bank the appellant (petitioning creditor) represents." Furthermore, in the Thompson case there was a promissory note which of course was prima facie evidence of an indebtedness and there is not any prima facie evidence of an indebtedness in the case at bar due from the estate of W. I. Hancock to Mrs. Thella McClellan, the petitioning creditor.
It is further respectfully submitted that the great weight of authority favors the proposition that the heirs may contest the appointment of an administrator.
21 Am. Jur. 436, par. 110; 124 Iowa 34, 98 N.W. 902; 31 Nev. 377, 103 P. 232; 129 Ga. 676, 59 S.E. 912; 23 C. J. 1061, par. 161; 23 C. J. 1090, par. 248; Sec. 1629, Code of 1930.
Within the purview of Section 1629 of the Mississippi Code of 1930, in accordance with the great weight of authority in this country there does not seem to be any question but that there must be at least a showing by the petitioning creditor for letters of administration that he is a prima facie creditor, and under the status of the pleadings in the case at bar on the contest of appointments of administrator and the demurrer, there is no prima facie showing in this case.
174 Miss. 629, 165 So. 542; 172 So. 752; In re Appeal of Mary Miller, 32 Nebr. 480, 49 N.W. 427; Thompson v. Carter's Estate, 117 So. 356; 21 Am. Jur. 411, par. 69.
Under the laws of this state any claim that the petitioning creditor, Mrs. Thella McClellan, might have had against W. I. Hancock in his lifetime from the time that he took possession of the property under foreclosure on March 1, 1933 and up until his death on March 20, 1935 for rents is barred by the three year statute of limitations of the State of Mississippi and also by virtue of Mrs. McClellan not having complied with the provisions of Chapter 262 of the Acts of the Legislature of 1938.
At the death of W. I. Hancock on March 20, 1935 his real estate vested in his heirs and any case that may be filed now to remove cloud from title would have to be filed against his legal heirs at law and subsequent purchasers of the land and not against the personal representative of W. I. Hancock four years after his death.
Fred B. Smith, of Ripley, for appellants.
The petition of Mrs. Thella McClellan was wholly insufficient to warrant the appointment of an administrator.
It is essential to the jurisdiction of the chancery court, in the appointment of administrators, especially where a creditor seeks the appointment of an administrator, that sufficient allegations be contained in the petition for appointment to justify the action of the court in making such appointment. Certain jurisdictional facts must be alleged, and they must not be mere conclusions of the pleader, but must be such as to warrant the court in determining the rightfulness and necessity of the proposed appointment. Such a proceeding is wholly ex parte, is originally had before the clerk without notice to the parties in interest, and usually without knowledge on their part of the proposed appointment. Therefore, a court of equity should be very careful to require that the petition for such appointment should explicitly set forth those facts which are required under the statute to authorize the clerk in making the appointment.
The petition for the appointment of an administrator was fatally defective, and wholly insufficient to warrant the court in appointing an administrator, even though no contest thereof had been filed whatever.
It could not be successfully maintained that a petition is not essential to the proper appointment of an administrator, under our procedure. It is a matter of common knowledge that our method of procedure in such cases is that a petition is filed with the chancery clerk by the party in interest, setting forth the facts warranting the appointment of an administrator, and that on the petition the court acts, the parties in interest come before the court, and jurisdiction is acquired of the subject matter. Sections 372 and 373 of the Mississippi Code of 1930 set forth the forms of bills and petitions, and some of the necessary contents thereof, presupposing that all actions in the chancery court, of every kind and description, must be started by bill or petition.
23 C. J. 1058; 21 Am. Jur. 432, Sec. 104; Miller v. Keith, 26 Miss. 166.
Regardless of the potential jurisdiction which a court may have, that jurisdiction does not become actual in any case until there is presented to the court a formal pleading, stating the facts justifying the exercise of that jurisdiction by the court.
Griffith's Chan. Practice, Sec. 30, page 30; Sec. 1629, Miss, Code of 1930; 49 C. J. 43, 44, 45, 46; State ex rel. Graves v. Henry, 40 So. 152, 87 Miss. 125; Metcalfe v. Merchants & Planters Bank, 42 So. 377, 89 Miss. 649; State ex rel. Booze v. Cresswell, 78 So. 770, 117 Miss. 795; Mitchell v. So. Ry. Co., 27 So. 837, 77 Miss. 917; Bank v. Bank, 64 So. 210, 106 Miss. 471; Horton v. Lincoln County, 77 So. 796, 116 Miss. 813.
There was a complete failure of any petition or application for the appointment of an administrator, containing any fact or facts sufficient to justify the court in appointing an administrator, or sufficient to inform the court as to what the true rights of the parties might be.
We respectfully submit that the proceedings on the part of the petition are wholly insufficient to justify and warrant the clerk in issuing letters of administration, and that any party in interest had a right to be heard by the court on the question of whether or not the clerk's vacation act should be approved and confirmed. And because of this total failure of the petition to meet the jurisdictional requirements, this cause should be reversed and dismissed in this court.
According to the record in this case it is not claimed that the appellee had any liquidated indebtedness against the estate of the decedent, nor did she have any evidence of her alleged debt. It was not represented by note, contract, or other written instrument. Her sole contention was based on an alleged wrongful occupation, by the decedent in his lifetime, of a tract of land, in which she claimed some right because of a defect in a foreclosure sale. She further alleged that she had a claim for the occupancy of said land on the part of the decedent, and on the strength of this unliquidated claim she based her right to have an administrator appointed. Such a claim for rental could not have arisen on any theory except that of an implied contract, or open account, and therefore would be barred by the three-year statute of limitations defined in Section 2299 of the Mississippi Code of 1930.
Section 2298 of the Mississippi Code of 1930 reads as follows: "If a person entitled to bring any of the personal actions herein mentioned, or liable to any such action, shall die before the expiration of the time herein limited therefor, such action may be commenced by or against the executor or administrator of the deceased person, after the expiration of said time, and within one year after the death of such person."
Our court has specifically held that under the present statute in force since the Code of 1871 the only stay in the operation of the statute, at the death of a debtor, is the one-year stay provided in the foregoing section, and it is immaterial whether an administrator is or is not appointed.
Hughston v. Nail, 18 So. 920, 73 Miss. 284; Weir v. Monahan, 7 So. 291, 67 Miss. 434; Claus v. Moore, 27 So. 612, 77 Miss. 701; Duffy v. Kilroe, 76 So. 781, 116 Miss. 7.
The petitioner was estopped and precluded by her laches and her lack of vigilance and diligence in prosecuting her alleged right from coming into court at the late date selected by her and having an administrator appointed.
Griffith's Chan. Practice, Sec. 41, page 44; 21 C. J. 193; 19 Am. Jur. 334, sec. 481; Thornton v. City of Natchez, 129 F. 84, 63 C. C. A. 526; Cross v. Hedrick, 66 Miss. 61.
Chap 262 of the Mississippi Laws of 1938 shows the the policy of the law and that that policy was...
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