Lewis v. Jefferson

• Decision Date: 20 May 1935
• Docket Number: 31685
• Citation: 161 So. 669,173 Miss. 657
• Court: Mississippi Supreme Court
• Parties: LEWIS v. JEFFERSON et al

161 So. 669

173 Miss. 657

LEWIS v. JEFFERSON et al

No. 31685

Supreme Court of Mississippi

May 20, 1935

Division B

Suggestion Of Error Overruled September 16, 1935.

APPEAL from chancery court of Marion county, HON. T. PRICE DALE Chancellor.

In the matter of the estate of Joe Lewis, deceased, wherein Gussie Lewis filed a petition against Cora Jefferson and others. From a judgment dismissing the petition after sustaining defendants' demurrer, petitioner appeals. Reversed and remanded.

Reversed and remanded.

J. N. Yawn, of Brookhaven, and G. Wood Magee, of Monticello, for appellant.

The bill of complaint was filed under the provisions of Section 1744, Mississippi Code of 1930.

This statute provides specifically that a bill of the nature here shall not be governed by the rules applicable to bills of review in chancery, but that it shall be the duty of the court to correct any errors of law or fact appearing in the final settlement, etc.

Section 1404, Code of 1930, was wholly disregarded, and this was the mistake of law or fact the Chancellor was called upon by the bill to correct. In sustaining the demurrer the Chancellor declined to correct this error, but he made the decision because, as he thought, the parties who received any of the funds should be made parties to the suit. We think this was clearly an error on the part of the Chancellor. We know of no reason why the ones to whom these funds were distributed should be made parties to the bill in this case; and certainly there is no legal requirement for making them parties to the bill. When an executor or administrator misapplies funds coming into his hands he and his bond are liable. The question of liability of the parties who were wrongfully and unlawfully paid the funds or who wrongfully and unlawfully received the funds is a matter between the executor or administrator and these parties. The rightful owner of the funds has nothing to do with this question.

Rawls & Hathorn, of Columbia, for appellees.

In our humble judgment, the bill of complaint filed in this case is not a bill to open or falsify the final account of the administratrix, but it is a bill to have appellant declared the sole and only heir of Joe Lewis and make her the sole distributee.

While she designates her bill a bill to open the account of the administratrix, she also prays that she be declared the sole heir at law and distributee of the deceased, and for judgment against the administratrix and her sureties for the full value of the corpus of the estate, hence she cannot escape the fact that her bill is in fact not for the purpose of opening or surcharging the account, but for the purpose of having herself decreed to be the sole heir, and distributee. This being the real relief sought by appellant, she should either be required to follow the statutory method of having herself declared the sole heir of the deceased, or at least she should be required to make all persons parties defendant to her bill that the statute requires to be made parties, where bill or petition is filed under the statute, Sections 359, 360 and 361, Code of 1930.

Conceding that appellant's bill is one solely for the purpose of opening the account of the administratrix, still under the law the brothers and sisters of the deceased, under the facts as reflected by appellant's bill and exhibits thereto, are necessary parties since rights which have been given them by decree of the court are being dealt with.

24 C. J., page 1039, par. 2496, and page 1040, par. 2497; Williams v. Williams, 43 Miss. 430; Dillon v. Bates, 39 Mo. 292; Reinhart v. Gartell, 33 Ark. 727; Pierce v. Materzold, 126 Minn. 445, 148 N.W. 302; Murphy v. Harrison, 65 N.C. 246; Finn's Estate, 19 Pa. Dist. 773; Audenried's Estate, 31 Pa. Co. 198; Turnbull v. Buford, 119 Va. 304, 89 S.E. 233; Van Winkle v. Blackford, 33 W.Va. 573, 11 S.E. 26; Gray v. Harris, 43 Miss. 427.

In connection with and as throwing light upon the question of whether or not the administratrix misapplied or wrongfully paid out the funds of the estate, we call the court's attention to the case of Lowry v. McMillan, 35 Miss. 147.

Appellant does not question in her brief, as we understand it, the propriety of demurrer for want of proper parties, but inasmuch as the error assigned is, broadly, that the court erred in sustaining the demurrer, we cite the following cases holding that demurrer is the proper procedure, where the bill shows on its face parties interested, and who are not made parties to the suit:

Champlin v. McLeod, 53 Miss. 484; Whitney v. Cotton, 53 Miss. 689; Rodd v. Durbridge, 53 Miss. 594; Yates v. Council et al., 102 So. 176; Griffith's Chancery Practice, pars. 147, 149.

OPINION

Griffith, J.

Joe Lewis, the husband of appellant, died on September 11, 1931 intestate. Lewis was a soldier in the World War, and at his death there was due to him the sum of two hundred ninety-nine dollars and eighty-three cents as a disability allowance from the federal government. ...