Jones v. R.L. Clemmer & Son

• Decision Date: 23 January 1911
• Docket Number: 14923
• Citation: 98 Miss. 508,54 So. 4
• Parties: A. J. JONES ET AL. v. R. L. CLEMMER & SON
• Court: Mississippi Supreme Court

54 So. 4

98 Miss. 508

A. J. JONES ET AL. v. R. L. CLEMMER & SON

No. 14923

Supreme Court of Mississippi

January 23, 1911

APPEAL from the circuit court of Tippah county, HON.W. A. ROANE Judge.

This was a suit in replevin by Mrs. A. J. Jones and others against R. L. Clemmer & Son. From a judgment in defendant's favor plaintiffs appeal.

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

Reversed and remanded.

Spight & Street, for appellant.

There are two questions raised by the assignment of error and as shown by the record.

First. That the court below erred in overruling the plaintiff's motion to amend so as to show that Mrs. A. J. Jones, widow of Miles Jones, deceased, was suing as administratrix.

Second. Because the court below erred in sustaining the motion of defendant to dismiss the case.

We will discuss these two points in inverse order, first considering the question as to the right of all the heirs of the decedent, Miles Jones, to maintain the action of replevin in their own names. It must be borne in mind that the record shows that plaintiffs offered to prove that Mrs. A. J. Jones and her two married daughters are the sole heirs of Miles Jones, deceased, all adults, and that there were no debts against the estate, and that at the institution of the suit no administrator had been appointed because none was necessary.

These facts stand as admitted because the proof was not demanded nor the opportunity given to make it.

While the suit was brought originally in the name of Mrs. A. J Jones, the widow, without objection, the proceeding was amended in the justice of the peace court by adding the names of the other heirs.

The question then presents itself, had these adult heirs under the circumstances of this case the right to prosecute this suit, or was it necessary that letters of administration should be taken out before the right to recover the bale of cotton in controversy could be asserted. Through a long line of decisions of this court and others it has been held that under such circumstances the heirs may sue in a court of equity without administration. There would seem to be no good reason why this should be true in courts of equity and not in a court of law. In such cases the legal title and right to possession vests in the heirs of the decedent, with the right to sue for and recover for purposes of distribution. This distinction between courts of equity and courts of law has not been uniformly observed. In the case of Wooten v Steele et al., 98 Ala. 252, vol. 13, So. R., page 562 which was an action of assumpsit in a court of law, the court in rendering the opinion uses this language: "The rule is that the legal title of a decedent to personal property vests in the administrator, and the administrator alone can sue. This rule prevails for the purposes of the administration. When there is no necessity for an administration, or when there has been a complete administration and final settlement, the rule does not apply. In such cases the distributees may maintain an action on a promissory note, payable to decedent, or to recover money had and received. The undisputed facts of this case bring it within the exception to the general rule."

In the case of Wright v. Robinson, 94 Ala. (So. Rep. vol. 10, page 319), the court uses this language: "The questions identical with the one raised by the demurrer has been very often before this court. We have uniformly held that, where nothing remains to be done except the reduction of the assets to possession, and their distribution among the next of kin, administration may be dispensed with."

In Knight v. Knight, 103 Ala. 484 (15 So. 834), the court says: "When the estate of a decedent owes no debts and has no administrator, the distributees may sue for reduction to possession and distribution among themselves of the personal assets of the estate, without having an administrator appointed and bringing him before the court. Though none but the personal representatives can, technically, be legal owners of the personal assets of a deceased person, prior to distribution or transfer made by him, yet, if there is no personal representation, and no necessity for one, if his appointment would be a useless formality, having no other office than to make distribution, the law dispenses with his intervention, treats the beneficiaries as being clothed with his rights and powers, and confers upon them his remedies to reduce the assets to possession. In other words, it, substantially, regards them, in such case, as the legal, as well a beneficial, owners of the assets."

In Magee v. Alexander et al., 104 Ala. 116, 16 So. 148, the court says: "When an estate is entirely free from debt and the only office of an administrator would be the reduction of the assets to possession and distribution, the administration is deemed a useless ceremony."

This court in Ricks v. Hilliard, 45 Miss. 359, uses this language: "We think the principle is established by the authorities, that the distributee shall not be required to take out letters of administration in order to assert his right. Accepting as the meaning of the court that, where the entire equity is in them, they shall not be put to this additional expense and delay, merely to get in the property for distribution; we think the principle is sound, if there are no creditors, then the equitable title of the distributee is complete, she is the only party having interest in the property.

In Henderson & Co. v. Clark, 27 Miss. 436, the court says: "The object of distribution is to ascertain the share of each heir in the joint estate and to give to it such identity as will enable him to enjoy it in severalty. Distribution gives to the heir, in fact, no new title; it merely ascertains the extent of his title or interest in the estate. An administrator holds the legal title as a trustee for those beneficially interested in the estate. He has only such legal title as is necessary to enable him to execute the trust. It is not necessary for the mere purpose of distribution, for him to have the legal title, and hence the law does not in such case give it to him."

In the case of Varner v. Gregg, 26 Miss., page 590, we have a case almost exactly similar to the one at bar. That was an action of trover in the circuit court of Franklin county in which the circuit judge instructed the jury that the action could not be maintained because the plaintiff was suing in his own right as the heir of his wife instead of by an administrator. The court denies the soundness of this position and reversed the case.

It having been virtually admitted that the plaintiffs in this action are all adults and the sole heirs of the decedent, the defendants were in no danger that their rights would be imperiled in another suit involving this property because it is further admitted that there are no creditors with claims against the estate.

Upon this point, the supreme court of California in Giselman v. Starr, 106 Cal., page 651 (40 Pac., page 8), says: "Where the plaintiff shows such a title as that a judgment upon it satisfied by the defendant would protect him from future annoyance or loss, and where, as against the party suing, defendant can urge any defense he could make against the real owner, then there is an end of the defendant's concern, and with it of his right to object; for, so far as he is interested, the action is being prosecuted in the name of the real party in interest."

It was said many years ago by an eminent judge that, "Courts will not do a vain thing." Will this court hold that in a case like this where eighty dollars worth of property is involved the real owners should be required, either to take out letters of administration, or go into the chancery court and incur heavy expense of such proceeding, or else, lose the little property involved? If this rule should be adopted it would not only work a hardship, but in many cases would result in denying to the heirs in small estates any right to recover that which justly belongs to them because the benefit to be derived would not be commensurate with the expense to be incurred. They would thus find themselves with a right without a remedy.

The court will take a judicial knowledge of the fact that the first district of Tippah county lies on the Tennessee line and that in an hour or two this bale of cotton could have been taken beyond the jurisdiction of the courts of this state and that in another hour or two could have been so commingled with other bales as to render it practically impossible to identify it. While the undisputed owners were either seeking letters of administration, or filing a bill in the chancery court the cotton would in all probability have been beyond recovery.

Thus far we have discussed the question of the right of the sole distributees of this estate to maintain this possessory action. We now come to the consideration of the other assignment of error in which the court below refused to allow an amendment to show that Mrs. A. J. Jones sued as administratrix, having been appointed subsequent to the bringing of the suit. If this amendment had been allowed the plaintiffs would have been not only the distributees, but also administratrix; thus the defendants would have been doubly protected in whatever rights they may have had. That they were interposing mere technical objections is abundantly shown by the fact that they objected to the distributees of the estate bringing suit, and at the same time objected to having it amended so as to make the administratrix the party. With them it was a case of "Damned if you do; damned if you don't."

Now let us see as to the correctness of the ruling of the circuit judge in denying the amendment. Our statute is so broad that almost...