McDowell v. Minor
| Decision Date | 01 April 1935 |
| Docket Number | 30993 |
| Citation | 160 So. 389,174 Miss. 848 |
| Court | Mississippi Supreme Court |
| Parties | MCDOWELL et al. v. MINOR |
Suggestion Of Error Overruled March 30, 1936.
APPEAL from the chancery court of Adams county HON. R. W. CUTRER Chancellor.
Accounting by D. G. Minor, as administrator of the estate of his mother Mrs. K. S. Minor, deceased, in which administrator filed individual claims, opposed by Mrs. Jeanne McDowell and others. From an adverse judgment, contestants appeal. Reversed and rendered.
Claim for such fees denied.
Kennedy & Geisenberger and W. C. Martin, all of Natchez, for appellants.
Undisputedly the record shows that either Mrs. Minor had possession of the cotton at the time of her death by holding the warehouse receipts therefor in her name, or Minor as her agent held the cotton, but if he did, he held it as her agent. He had no lien thereon for supplies, because he had no chattel mortgage, and he was not landlord and, therefore, had no lien.
Harris v. Lombard, 60 Miss. 229; 37 C. J. 701 and 841; 140 Cal. 16; Lucas v. Mortgage Co., 72 Miss. 366; 49 C. J. 916 and 954.
These appellants contend that the administrator is liable for interest for delayed distribution.
If an administrator, by negligence or maladministration, fail to collect debts due the estate of his intestate, he will be chargeable with the amount of said debts, with all interest thereon.
Banks v. Machen, 40 Miss. 256; Cason v. Cason, 31 Miss. 578; Moffett v. Lourridge, 51 Miss. 211.
The chancellor recognized the liability of the estate to these appellants for their expense as attorneys' fees for protecting the estate against the claims, and allowed seven and one-half per cent on the total amount for services in the lower court, but it did not include any services in the Supreme Court. This amount, however, has never been paid. The court indicated to counsel that he thought a fee of fifteen per cent for both courts would be reasonable, but when the chancellor formulated his final decree, he reserved therein the matter of fixing this fee until his passing on the final account. We ask the court of its own knowledge to fix a reasonable fee for the services rendered.
This is the sixth appeal of this case. The administrator's account as now stated and approved by the court is exactly the same as has been presented to this court on three former appeals. The principles upon which the administrator stated his account were the same on each appeal, and the court upon its reversal, by judgment reported in 142 So. 491, established "the law of the case," which must now be followed and applied.
McDowell v. Minor, 158 Miss. 360; Johnson v. Britt Co., 61 So. 178; Kellogg v. King, 75 So. 134; Reed v. Norman Breaux Lbr. Co., 149 Miss. 395; Commercial Bank & Trust Co. v. Dendy, 149 Miss. 512.
"The law of the case" directed that all claims of D. G. Minor arising in an agent's capacity after his mother's death be eliminated.
In addition to the results to be obtained by the applying of "the law of the case" to the administrator's account before the court on the former appeal, it is insisted that the administrator is chargeable with the twenty-nine thousand seven hundred pounds of lint cotton which came into his possession as administrator of the estate, and which is now in his possession. He was ordered, upon his own petition, to sell the cotton, because it was incapable of division in kind. He did not sell it. Later he was ordered to divide it in kind. He did not do it. Cotton at that time was worth on an average of nineteen cents per pound. This court certainly will not permit this distributee to take a loss on account of the administrator's disobedience, not only to the orders of the court but to the law governing administrators.
D. G. Minor's authority as agent terminated upon his mother's death. He had not collected the rents at that time and therefore they were collectible by the administrator as such and chargeable to him as such.
The master misconceived the law of principal and agent and admittedly applied the directions of the Supreme Court to the wrong account of the administrator and to an administrator's account that was never approved by the lower court and was not before the Supreme Court in Cause No. 29,872, which was reversed with directions.
Where property is pledged for the payment of a debt, the pledgee's right to hold the property and apply it to the discharge of the debt does not become barred by the statute of limitations as long as the pledge continues and the debt is unpaid; and this is true although the statute has run against the right to recover the debt.
These appellants and distributees are entitled to interest on their distributive share.
Banks v. Machen, 40 Miss. 256.
These distributees are entitled to attorneys' fees to be allowed them on two different items. They acted for the benefit of the estate in successfully contesting the probated claims of D. G. Minor, the administrator. They are entitled to have attorneys' fees allowed them for placing assets in the estate, that is, having the administrator charged therewith.
Engle & Laub and Luther A. Whittington, all of Natchez, and Watkins & Eager, of Jackson, for appellee.
Minor, the administrator, was entirely correct in inventorying and accounting for only the debt due the estate by Minor, agent, the same being the only property in his hands.
Sections 1643, 1648, 1677, 1679, 539, Code of 1930; Franks v. Wanzer, 25 Miss. 121; Cohn v. Carter, 46 So. 627; Jones v. Warren, 70 Miss. 227; Harris, Parker & Co. v. Hutcheson, 65 Miss. 9; Robinett v. Starling, 72 Miss. 652; 57 C. J., Set-Off & Counterclaim, 360-363; Fishburne v. Mer. Bank, 85 P. 38; Lay, Admr. v. Mechanics Bank, 61 Mo. 72; Murphy v. Colton, 44 P. 208; Finnell v. Nesbitt, 16 B. Monr. R. 351; Ainsworth v. Bank of Cal., 39 L.R.A. 686; Green v. Harris, 193. Pac. 690; Troup v. Mec. Nat. Bank, 53 A. 122; Pendleton v. Hellman Com. Bank, 208, P. 702; Printy v. Cahill, 85 N.E. 753; 24 C. J., 436-443, 333-334, par. 955; Sandy v. Crumpt, 139 Miss. 163, 103 So. 804; Blum v. Planters Bank, 135 So. 353; 2 C. J., Agency, par. 469, pp. 800-801; Dewing v. Hutton, 40 W.Va. 521, 21 S.E. 780; German Trust Co., Davenport Tp. Be., 96 N.W. 878; Sanger Lbr. Co. v. Western L. Exch., 222 P. 609.
With the exception of the items listed in the inventory, including the debt from Minor, agent, to the estate, the record shows that there were no other assets of the estate which was property in his hands and for which he was accountable.
The cotton in the warehouse was not an asset of the estate.
Griffith's Miss. Chancery Prac., sec. 674; 22 C. J., page 129; Danforth v. Egan, 20 Ann. Cas. 418; Bly v. Smith, 113 N.W. 659; First National Bank v. Dalsheimer, 248 S.W. 575; Dean v. Board of Sup'rs, 135 Miss. 268.
There was no rent due from the tenants to the estate which was collected or collectible by the administrator thus becoming assets of the estate.
Trenholm v. Miles, 102 Miss. 835, 59 So. 930; Peets & Norman Co. v. Baker, 95 Miss. 580; Noles v. Moreland, 27 So. 598; 36 C. J., Landlord & Tenant, pages, 364, 384, 407.
The former appeal on the probated claims has no effect on the rights or liabilities of the administrator here.
There was no election of remedies.
23 C. J. 1178, par. 297; 21 C. J. 1184, par. 187; 24 C. J. 362-363, par. 1018; Franks v. Wanzer, 25 Miss. 121; Goodyear v. Davis, 220 Pa. 282; Mazer v. City Nat. Bank, 146 So. 885; 11 Smedes & M. 70-77; Jackson v. McCalla, 66 S.E. 918; First Nat. Bank v. Sandmeyer, 164 Ill.App. 98; Thompson v. Black, 200 Ill. 465; Lynn v. Schirber, 183 N.W. 864; Graham v. Perry, 228 N.W. 135, 68 A.L.R. 267; Selna v. Selna, 73 Am. St. Rep. 47; 20 C. J., Election of Remedies; Pollock v. Cantlin, 253 Ill.App. 229; U. S. F. & G. Co. v. Maxwell, 237 S.W. 708; Lowrey v. Schroeder, 180 N.W. 145; North. Assur. Co. v. Gran View Bldg. Asso., 203 U.S. 104, 51 L.Ed. 109; Watson v. Perkins, 88 Miss. 64, 40 So. 643; Schenck v. State Line Tel. Co., 144 N.E. 592; Austin v. First Trust Bank, 175 N.E. 554; Carroll v. Stern, C. C. A. 6, 223 F. 723; In re Stewart, 178 F. 463; Bierce v. Hutchins, 205 U.S. 339, 51 L.Ed. 828; Corbett v. Boston, etc., R. Co., 107 N.E. 60; Wilson v. Carroll, 50 S.W. 222; U. S. v. Oregon Lbr. Co., 67 L.Ed. 261, 260 U.S. 289.
The decisions in McDowell v. Minor, 130 So. 484, are not res adjudicata of the question here.
15 R. C. L. 973 and 982, sec. 455; 34 C. J. 805-807; Stringer v. Gamble, 118 N.W. 815; Slauson v. Englehart, 34 Barb. 198; Palmer v. Sanger, 32 N.E. 390; Newhall v. Hatch, 55 L.R.A. 673; Barber v. Mulford, 49 P. 206; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Terry v. Hageman, 102 Miss. 224, 59 So. 75; Mortgage Co. v. Cunckley, 88 Miss. 641, 41 So. 502; Barataria Canning Co. v. Ott, 41 So. 378, 88 Miss. 771; Conn v. Bernheimer, 67 Miss. 498; Merritt v. Peterson, 222 N.W. 853; Dunseth v. Butte Elec. Co., 108 P. 567; Decell v. McRee, 83 Miss. 423; Hunt v. Hendrickson, 116 A. 496; In re Harr & Harr's Estate, 22 S.W.2d 209; Reiley v. Hare, 280 S.W. 543; State v. Citizens State Bank, 214 N.W. 6; Lithgow v. Sweedberg, 78 S.W. 246; Carit v. Williams, 15 P. 751; Peterson v. Morris, 205 P. 408; Keanum v. So. Ry. Co., 151 Miss. 784, 119 So. 301.
The decision reported in McDowell v. Minor, 142 So. 491, is not the law of the case in that it is conclusive on this appeal of either the question of fact or the question of law as to what were assets of the estate.
4 C. J. 1093-1104; Canning v. Ott, 88 Miss. 771, 41 So. 378; Hamilton v. State, 67 Miss. 217.
The fact that the administrator made corrections and changes in his inventories and accounts is immaterial.
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