McDowell v. Minor

• Decision Date: 01 December 1930
• Docket Number: 28450
• Court: Mississippi Supreme Court
• Parties: MCDOWELL et al. v. MINOR

131 So. 278

158 Miss. 788

MCDOWELL et al. v. MINOR

No. 28450

Supreme Court of Mississippi

December 1, 1930

Division B

1. EXECUTORS AND ADMINISTRATORS.

Objections to administrator's account importing matters of fact may be availed of only by plenary pleading, and not by motion to strike.

2. EXECUTORS AND ADMINISTRATORS.

Administrator in accounting proceeding, if desiring to shift from former adjudicated position, must show no disadvantage to estate.

3 PLEADING.

Where pleading is not timely filed without just excuse, or is manifestly sham and frivolous, or has no legitimate place in proceedings, motion to strike is available.

4 PLEADING.

In absence of statute, motion should not usurp place of regular formal pleading.

5 PLEADING.

Motion to strike will be allowed only when no plenary pleading is available and when justice of motion is clear.

6. EXECUTORS AND ADMINISTRATORS.

Interested person, not satisfied with administrator's account, must take exceptions on issues of law and make proper objection on matters of fact in such plenary manner that issues of fact may be fairly joined.

7. EXECUTORS AND ADMINISTRATORS.

Exceptions and objections to administrator's account must clearly point out grounds of objection, and state specifically items objected to and reasons.

8. EXECUTORS AND ADMINISTRATORS.

Facts not manifest on face of administrator's account, but necessary to be shown, must be proved and made part of record.

9. PRINCIPAL AND AGENT.

Fiduciary relationship precludes agent from acquiring private interest in opposition to principal in respect to transactions growing out of relationship.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Adams county, HON. R. W. CUTRER, Chancellor.

Proceedings between Mrs. J. McDowell and others, and D. G. Minor, in the matter of the estate of Mrs. K. S. Minor, deceased. From the decree rendered, the former appeals. Reversed and remanded.

See, also, 130 So. 484, 485.

Reversed and remanded.

W. C. Martin and L. T. Kennedy, both of Natchez, for appellants.

Luther A. Whittington and Engle & Laub, all of Natchez, for appellee.

Briefs of counsel addressed to merits of case and not to points of practice upon which the court acted.

OPINION

Griffith, J.

The first appearance in this court of the complicated controversy between these parties is reported in Minor v. McDowell, 113 So. 576, and reference is now made to that opinion for a statement of the facts up to that time; it being noted, however, that the correct date of the death of the mother, Mrs. K. S. Minor, is February 17, 1926, instead of September 17th, inadvertently stated in that report. And there is to be added to the statement of facts that on the day following the death of his mother, appellee was appointed administrator of her estate, and has not yet been discharged from that office.

It will be observed by reference to the opinion mentioned that at the instance and insistence of D. G. Minor, appellant there, appellee here, the court held that the relationship between the mother and her son was that of principal and agent, and that the three-year statute of limitations applied to all items of accounting between them. Nevertheless, soon after the decision in that first case, and the delivery of the said opinion, the said son, on May 21, 1927, filed an elaborate statement of account with his mother's estate wherein he extended all the items of account, debit and credit, back to and including the year 1918, or for a period of more than seven years next before the date of his mother's death, and this he now insists he is entitled to do, on the theory that the account between him and his mother is a mutual account, arising out of mutual dealings.

Upon being challenged that this latter attitude is a shifting of position from that first taken by said son, wherein and whereby he succeeded in procuring a decision in his favor from this court that the relationship was simply that of principal and agent and that the three-year statute applied in his accounting with his mother, he has replied that the former decision and the previous declaration of the law of the case does not preclude him from voluntarily extending his accounts back of the three years, provided in so doing he brings himself out as indebted to his mother in a greater amount than would be the result of the items of debit and credit covered only the last three years, and he insists that the account as now stated by him shows his indebtedness to be five thousand four hundred forty-three dollars and ninety-seven cents more than would be shown if confined to the said last three years.

This proposition might be admitted as sound and might be accepted if there were no objection to it by the opposite parties, or if it appeared that the result suggested by appellee is true as a matter of fact. But the opposite parties have objected and most earnestly, and they insist that the manner in which the account is now stated is to the disadvantage of the estate in more than thirty thousand dollars, as best we can make from the arguments presented.

We have with diligence attempted to work out from the record before us whether applying the three-year statute the result would be more favorable to the estate than to accept the account as stated by appellee; but the embarrassment presented by the awkward way in which the record has been made up is such that we have finally concluded that we can do nothing which will furnish a result upon which we can rest with any confidence that the right decision upon the merits has been reached. We have reference to the fact that instead of filing plenary objections to the account of the administrator as rendered by him, specifically stating and clearly pointing out the several grounds of objection, and thereupon developing the full facts by competent and pertinent evidence, and making all of this a matter of record before us, appellants filed a motion to strike the...