Luckett v. Brickell

• Citation: 115 Miss. 457,76 So. 502
• Decision Date: 21 May 1917
• Docket Number: 18969
• Court: United States State Supreme Court of Mississippi
• Parties: LUCKETT v. BRICKELL

76 So. 502

115 Miss. 457

LUCKETT v. BRICKELL

No. 18969

Supreme Court of Mississippi

May 21, 1917

Division A

APPEAL from the circuit court of Yazoo county, HON. W. H. POTTER Judge.

Action of replevin by H. H. Brickell, administrator cum testamento annexo, against Mary V. Luckett. From a judgment for plaintiff, defendant appeals.

This is an action of replevin brought by the appellee, administrator c. t. a. of the estate of J. F. Powell, deceased, to recover of appellant certain certificates of stock pledged by the executor of the will of said decedent, for the purpose of securing payment of a certain promissory note, executed by said executor, as such, in favor of appellant, for money borrowed of appellant by said executor for the use of the estate of said Powell.

J. F Powell, who was a large planter and merchant, died in the year 1909, owning thirteen plantations, and a large mercantile business. At the time of his death he owed considerable money, amounting to more than one hundred thousand dollars. He died testate, leaving a will, which is set out in full in the case of Brickell v. Lightcap (No. 19049) 76 So. 489.

R. W Crook was made executor of the will; and T. H. Campbell, Sr., and R. W. Crook and the Bank of Yazoo City were made joint trustees of the residue of his property, after the payment by the executor of certain legacies, and the satisfaction of certain debts. Among other debts which he owed at the time of his death was an indebtedness amounting to sixty-four thousand, nine hundred and sixty-six dollars and sixty-eight cents due the Bank of Yazoo City, which indebtedness was evidenced by notes, and a small portion of it by an overdraft. This claim was duly probated.

On March 28, 1910, the indebtedness due by the estate to the Bank of Yazoo City had been reduced to thirty-one thousand, eight hundred and thirty-two dollars and forty cents, and a loan was obtained from said bank for forty thousand dollars for the estate, and the executor gave his note for that amount and paid off said notes of the Powell estate, and deposited the difference to the credit of the estate, but, with the consent of the executor, the bank retained certain collateral held by it to secure the new loan. Thereafter, about July 9, 1910, an additional loan of ten thousand dollars was obtained for the estate from said bank; the amount being placed in the checking account of the executor. Thereafter, on January 9, 1911, the executor and the trustees petitioned the chancellor, in vacation, to borrow fifty thousand dollars to pay off debts and run the mercantile and farming business of the estate, and the chancellor allowed the petition, entering the following decree:

"This matter coming on to be heard this day in vacation, on petition of R. W. Crook, executor of the last will and testament of J. F. Powell, deceased, and the Bank of Yazoo City, T. H. Campbell, and R. W. Crook, trustees of the last will and testament of said J. F. Powell, deceased, to borrow money for the purpose of paying off the balance of indebtedness owing by the decedent in his lifetime, and for the purpose of carrying on his plantations and mercantile business, and the chancellor being fully advised in the premises, it is ordered, adjudged, and decreed that R. W. Crook, executor, and the trustees of said estate, are hereby authorized and empowered to carry on and operate the plantations owned by J. F. Powell in his lifetime, and said R. W. Crook is authorized to carry on the mercantile business, and that for said purpose said executor and said trustees are hereby authorized and directed to negotiate a loan with the Bank of Yazoo City or any other source, for an amount not to exceed fifty thousand dollars at a rate of eight per cent. discount, provided it cannot be obtained for less from some other bank or corporation or person, and that said executor and trustees are hereby authorized, for the purpose of securing said loan, to assign a sufficient amount of notes, bank stock, and accounts, and the rents from said plantations, for the purpose of negotiating said loan from the said Bank of Yazoo City or any other person or corporation."

Thereafter, on March 9, 1911, the executor obtained the following decree authorizing them to borrow and additional twenty-five thousand dollars:

"In the Matter of the Estate of J. F. Powell, Deceased.

"This matter coming on to be heard this day on the petition of R W. Crook, executor of the estate of J. F. Powell, deceased and T. H. Campbell, the Bank of Yazoo City, and R. W. Crook, trustees of the estate of J. F. Powell, deceased, that they be permitted to borrow twenty-five thousand dollars in addition to the fifty thousand dollars which they have been heretofore authorized to borrow, and the court being fully advised in the premises, it is therefore ordered, adjudged, and decreed that said R. W. Crook, executor, and said T. H. Campbell, the Bank of Yazoo City, and R. W. Crook, trustees of the estate of J. F. Powell, be and are hereby authorized and directed to borrow twenty-five thousand dollars in addition to the fifty thousand dollars which they have already been authorized to borrow by this court; and said executor and trustees are authorized to pledge as security any of the personal property of the estate of J. F. Powell, deceased, and to borrow the same at a rate of interest not greater than 8 per cent. per annum. It is further ordered, adjudged, and decreed that said executor and trustees be, and are hereby, authorized...