Hayes v. National Surety Co.
| Decision Date | 19 March 1934 |
| Docket Number | 31099 |
| Court | Mississippi Supreme Court |
| Parties | HAYES et al. v. NATIONAL SURETY Co. et al |
1. EXECUTORS AND ADMINISTRATORS.
In determining what is received by administrator, court may look to appraisement (Code 1930, section 1644).
2. EXECUTORS AND ADMINISTRATORS.
In action against administrator of administrator, apparent defects in appraisement, introduced to show what administrator received, were supplied by operation of presumption that incidental procedural stops which should have been taken were taken (Code 1930, section 1644).
3. EXECUTORS AND ADMINISTRATORS.
Appraisement was no evidence against administrator in regard to accounts due estate, life insurance, and money on hand, because appraisement does not legally deal with money and choses in action, since such items are to be returned by inventory (Code 1930, sections 1644, 1654).
4. EXECUTORS AND ADMINISTRATORS.
Although appraisement was no evidence against administrator regarding insurance and cash, he was chargeable with insurance collected and cash received where evidence outside appraisement showed he received them (Code 1930, section 1644).
5. EXECUTORS AND ADMINISTRATORS.
Statutory provision that administrator shall be charged with what is shown by appraisement does not preclude proper parties from proving that articles appraised were actually worth more than respective appraised amounts (Code 1930, section 1644).
6. EXECUTORS AND ADMINISTRATORS.
Statutory provision, that administrator shall stand charged with appraisement unless he show cause to contrary, does not limit showing to one by administrator himself, but showing may be made by any proper person sought to be charged with administrator's liability (Code 1930, section 1644).
7. EXECUTORS AND ADMINISTRATORS.
Appraisement as regards items with which it is authorized by law to deal stands as correct charge prima facie against administrator (Code 1930, section 1644).
8. EXECUTORS AND ADMINISTRATORS.
That administrator actually received more or less than was charged to him by appraisement may be shown by competent evidence adduced by any proper party in interest (Code 1930, section 1644).
9. EXECUTORS AND ADMINISTRATORS.
Where cotton crop was produced by tenants working on shares and landlord's estate was entitled to only one-third of crop administrator was chargeable only with such one-third of crop (Code 1930, section 1644).
10. EXECUTORS AND ADMINISTRATORS.
Widow as administratrix de bonis non, could not be charged with entire personal property received, but only as to part not exempt, though appraisers did not set exempt property apart (Code 1930, section 1656).
11. EVIDENCE.
In action against administrator of administrator, bank's ledger sheets and accounts shown thereon were admissible, where sufficiently authenticated by witness who assisted in keeping them.
12. EXECUTORS AND ADMINISTRATORS.
Bondsmen of administrator of administrator were not liable on account of anything received by principal, where he received nothing except small sum subsequently paid over by him to administratrix de bonis non.
13. EXECUTORS AND ADMINISTRATORS.
Courts have no authority to excuse performance of duty of administrator of administrator to settle accounts of deceased administrator, regardless of circumstances (Code 1930, section 1632).
14. EXECUTORS AND ADMINISTRATORS.
Account by administrator of administrator must be filed with reasonable promptness (Code 1930, section 1632).
15. EXECUTORS AND ADMINISTRATORS.
In filing of account by administrator of administrator, the same requirements, including those in matter of notice to all proper parties in interest, must be observed which appertain to final accounts (Code 1932, section 1632).
16. EXECUTORS AND ADMINISTRATORS.
Until account by administrator of administrator has been approved, administrator of administrator must hold in his hands sufficient assets of estate of his decedent to pay balance due to first estate, whether such assets are derivative of first estate, or whether original property of deceased administrator (Code 1930, section 1632).
17. EXECUTORS AND ADMINISTRATORS.
Bondsmen of deceased administrator's administrator, who failed to file account required by statute, were liable to distributees of first estate for all consequences of failure of principal as administrator to faithfully discharge duties required (Code 1930, section 1632).
18. EXECUTORS AND ADMINISTRATORS.
A "devastavit" and a breach of bond is committed by administrator who, having in his hands unincumbered assets, fails to pay them over when and as law requires and directs.
19. EXECUTORS AND ADMINISTRATORS.
Where administrator of administrator fails to file account required, but it was deceased administrator who spent money of first estate, estate of first administrator and his bondsmen were primarily liable, so that bondsmen of his administrator, after paying amount required on account of bond, became subrogated to rights distributees of estate had against deceased administrator.
20. EXECUTORS AND ADMINISTRATORS.
Where administrator of administrator did not file account as re quired, distributees of first estate could recover against bondsmen of administrator of administrator though demand was not probated, since demand was a liability, not a claim (Code 1930, section 1632).
21. EXECUTORS AND ADMINISTRATORS.
It is unnecessary by probate to bring notice to administrator or his bondsmen of liability or claim against administrator which his own default in performance of duty brought about.
22. EXECUTORS AND ADMINISTRATORS.
Where administrator of deceased administrator did not file account required and evidence showed money was paid out by deceased administrator without showing purposes, estate of deceased administrator and his bondsmen were liable to heirs and distributees, payment to be enforced out of original property of administrator if legally possible and in default thereof, out of bondsmen of deceased administrator (Code 1932, section 1632).
23. EXECUTORS AND ADMINISTRATORS.
Where account filed by administratrix de bonis non appeared to have been sustained by vouchers, that vouchers were lost was not sufficient to displace account, since it must be presumed that they were sufficient to justify chancellor's decree approving account.
24. EXECUTORS AND ADMINISTRATORS.
Claim for rent of land farmed by administratrix de bonis non after year of appointment could not be sustained against administratrix or bondsmen, where she obtained no court order authorizing cultivation of plantation since cultivation was as tenant in common with coheirs, not as administratrix.
25. JUDGMENT.
In action by heirs against administrator of deceased administrator and against administratrix de bonis non, administratrix, widow, could not recover her one-third interest against estate of deceased administrator where she did not make herself a cross-complainant.
26. EXECUTORS AND ADMINISTRATORS.
Court allowing recovery by heirs against estate of deceased ad ministrator would not allow interest, where there had been such delay as would introduce element of laches had complainants all the while been persons of mature age, and especially where money did not earn interest.
Suggestion Of Error Overruled April 2, 1934.
APPEAL from chancery court of Tallahatchie county, HON. R. E. JACKSON, Chancellor.
Action by Ura L. Hayes and others against National Surety Company and others. From the judgment, plaintiffs appeal. Affirmed in part, reversed in part, and remanded with directions.
Affirmed in part, reversed in part, and remanded.
Stone & Stone, of Coffeeville, for appellants and cross-appellees.
Where an appraisement has been made the administrator shall be charged therewith unless he shows cause to the contrary.
Section 1704, Hemingway's Code.
In case of the death of an administrator or executor the executor of an executor shall not be entitled, in right of his office to administration de bonis non on the first estate, but such executor or the administrator of an executor, or the executor or administrator of administrator, shall settle the accounts of his testator or intestate in the administration of the first estate, and for that purpose shall be amenable to the jurisdiction of the court.
Section 1696, Hemingway's Code of 1917.
It ought to be sufficient to show that all the facts and the solemn words of the statute entitle us to the relief against the estate of Albert J. Johnson and the bond of his personal representative; however, we want to refer to some of these decisions which seem, as well as the words of the statute and the uncontradicted portion of the testimony to demand a judgment in favor of the complainants for the full amount.
Stein v. Stein, 25 Miss. 513; Judge of Probate v. Phipps, 5 How. 59; Reeves v. Patty, 43 Miss. 338; Billups v. Evans, 56 Miss. 488; Dinkins v. Bailey et al., 23 Miss. 290; State v. Williams, 68 Miss. 680, 10 So. 52, 24 A. S. R. 297; Weir v. Monahan, 67 Miss. 434, 7 So. 291; Tell City v. Stiles, 60 Miss. 849.
The obligation entered into by the National Surety Company is a joint and several obligation, and even if others can be sued that is no defense for the National Surety Company.
Chap. 99, Code of 1930; Davis v. State, 118 Miss. 577, 79 So. 764; Lewis v. State, 4 So. 429; Horn v. Tart, 76 Miss. 304, 24 So. 971; Gillespie v. Hounstein, 72 Miss. 838, 17 So. 602; 11 R. C. L., sec. 346; Russell v. Russell, 164 Miss. 335, 144 So. 542; Reeves v. Reeves, 157 Miss. 448, 128 So. 330; Cason v. Cason, 31 Miss. 578; 11 R. C. L., Executors and Administrators, sec. 193, footnote 7, and page 426, sec. 523.
Chester A. Johnson should have made...
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