Martin v. De Jarnette
| Decision Date | 13 March 1939 |
| Docket Number | 33619 |
| Court | Mississippi Supreme Court |
| Parties | MARTIN et al. v. DE JARNETTE |
APPEAL from the chancery court of Marshall county HON. L. A. SMITH SR., Chancellor.
Proceedings by Mrs. Nina De Jarnette, administratrix of the estate of John Martin, deceased, for an order of court to sell deceased's estate, real and personal, to pay debts wherein J. N. Martin, individually and as next friend for his brother, T. W. Martin, an alleged non compos mentis, filed claims. From the decree disallowing the claims, the claimants appeal. The court required T. W. Martin to appear by attorney and refused to permit him to appear by next friend. Affirmed.
Affirmed.
Glenn Fant, of Holly Springs, for appellants.
The court erred in refusing to permit T. W. Martin to sue by his brother and next friend. The only way in which a person of unsound mind can appear in court is by next friend.
Columbia Mutual Life Ins. Co. v. Jones, 133 So. 149, 160 Miss. 41; Gillespie v. Hauenstein, 72 Miss. 838; Finney v. Speed, 71 Miss. 32; Bull v Dagenhard, 55 Miss. 602; Klaus v. State, 54 Miss. 644.
An insane person has been held to be in law a ward of the chancery court.
Mabry v. Hoye, 87 So. 4, 124 Miss. 144.
In the settlement of an estate in which a person of unsound mind is interested, the interests of such person should be protected by the court.
Vick's Executor v. McDaniel, 3 How. (4 Miss.), 337.
The court erred in disallowing the claim of T. W. Martin.
Certainly, if T. W. Martin had been under no disability he would have had a paramount right to the property in controversy, for the relation existing between him and Johnny Martin would have been a partnership.
Vaiden v. Hawkins, 6 So. 227; Hines v. Potts, 56 Miss. 346.
In the case at bar the fact of T. W. Martin's disability to make an express contract should not be used to defeat his rights. The court should have implied a contract to the extent necessary to protect him. If he had been of sound mind, there would have been a partnership. Being of unsound mind, we submit, his rights should not be diminished.
An administratrix of a deceased partner has no right to the assets of the partnership.
The personal property of the firm, upon the death of a partner, vests in the survivor; but in no event does the title to the partnership property devolve upon the administrator of the deceased partner.
Robertshaw v. Hanway, 52 Miss. 713; Hanway v. Robertshaw, 49 Miss. 758; Scott v. Searles, 5 S. & M. (13 Miss.) 25; Clay v. Field, 34 F. 375, 138 U.S. 464, 34 L.Ed. 1044.
The burden was upon the administratrix claiming this property, and not upon the surviving partner.
Scott v. Searles, 5 S. & M. (13 Miss.) 25.
This doctrine of law has never been questioned. We submit that it applies to the case at bar for the protection of T. W. Martin.
The court erred in disallowing the claim of J. N. Martin.
Pannell v. Glidewell, 142 Miss. 77; McCloskey Bros. v. Hood, 119 Miss. 92.
The court erred in disallowing the probated claim of J. N. Martin. No objection of the administratrix to the claim and no process on the creditor appears in the record. We submit that the decree as to this claim is, therefore, erroneous.
The objection to the claim on its merits, we submit, is not well taken. The claim shows that it is a doctor's bill paid by J. N. Martin, the brother of the deceased, who was also an heir. It was proper for J. N. Martin to do this.
Moffatt v. Loughridge, 51 Miss. 211; Rogers v. Rosenstock, 77 So. 958, 117 Miss. 144.
Dean Belk, of Holly Springs, for appellee.
The general rule is that when a suit is brought against a person, not an idiot, but who is of non-sane mind, if an infant, he must be defended by a guardian; if an adult, he must be defended by an attorney to be appointed by the court, if necesary.
The court did not err in requiring T. W. Martin to sue in his own person and make affidavit by and through his attorney, then in open court representing him.
Did the court err in overruling the claim of J. N. Martin to the mule in controversy? The opinion of the Chancellor given at the conclusion of the evidence, held: "The court believes from the testimony in this cause that the claimant has failed to make out any right to this red mule and therefore his claim will be denied with costs even though the court should accept as evidence the averments of the claimant's pleadings, in view of the over weight of the testimony against the claim."
Chapman v. Federal Land Bank of New Orleans, 185 So. 586.
This estate was insolvent and the procedure therein with reference to claims against the estate is covered by section 1728, Code of 1930, Chapter 242, Laws of Mississippi of 1936. The notice thereon required was given. A hearing was had and the hereinafter cited authority read to the court and by the court read to J. N. Martin then present and decree rendered thereon on date of June 18th disallowing the claim. From the probated claim of J. N. Martin it will be seen that Dr. S. T. Rucker billed J. N. Martin for services rendered for John Martin in the sum of $ 150.
Physician's and drug bills necessarily incurred in a decedent's lifetime are debts against the deceased and where not paid by claimant at the request of deceased, they should be separately probated on the affidavit of the original creditors that they are just, correct and owing from the deceased in accordance with Code of 1906, section 3102 (section 1774, Hemingway's Code).
Gauldin v. Ramsey, 123 Miss. 1, 85 So. 109; McWhorter v. Donald, 39 Miss. 779, 80 Am. Dec. 97; Persons v. Griffin, 112 Miss. 643, 73 So. 624.
It will be noted that John N. Martin, not Dr. S. T. Rucker, probated this claim against the estate for this decedent without any affidavit as to it being just, correct and owing from the deceased by Dr. S. T. Rucker, was not transferred to him by Dr. S. T. Rucker and gives no information other than that it was paid by the said J. N. Martin as a free volunteer.
It is therefore definitely not a proper probate against the estate of John Martin and the court did not err in disallowing this claim.
Mrs. DeJarnette is administratrix of the estate of her deceased uncle, John Martin. The estate is insolvent and so declared by the chancery court. The personal property of the estate consists of farm implements and stock and household and kitchen furniture, inventoried at $ 409.50.
Appellant, J. N. Martin, claimed title to one mule inventoried as part of the estate, and as next friend for his brother, T. W. Martin, alleged to be non compos mentis, claimed title to a one-half undivided interest in the balance of the property inventoried. And, in addition, J. N. Martin probated and sought to have allowed against the estate a claim of $ 150, which he contends was owed him by his deceased brother. The court disallowed all three of the claims. From that decree, this appeal is prosecuted.
The administratrix petitioned for an order of the court to sell the estate, real and...
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