Patton v. Pinkston

• Court: Mississippi Supreme Court
• Writing for the Court: COX, J.
• Citation: Patton v. Pinkston, 86 Miss. 651, 38 So. 500 (Miss. 1905)
• Decision Date: 22 May 1905
• Parties: SAMUEL R. PATTON ET AL. v. SARAH E. PINKSTON ET AL

38 So. 500

86 Miss. 651

SAMUEL R. PATTON ET AL. v. SARAH E. PINKSTON ET AL

Supreme Court of Mississippi

May 22, 1905

April 1905

FROM the chancery court of, first district, Panola county, HON JULIAN C. WILSON, Chancellor.

Mrs Pinkston and others, the appellees, were complainants, and Patton and others, the appellants, defendants in the court below. From a decree in complainants' favor the defendants appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed and remanded.

Shands & Shands, for appellants.

As a general rule, an executor or administrator is always necessary to take charge of, collect, and disburse the personal assets of a decedent. Marshall v. King, 24 Miss. 85; Browning v. Watkins, 10 Smed. & M., 485; Hickox v. Frank, 102 Ill. 660.

It will be presumed in every case that an administrator is necessary unless facts are shown making an exception to the general rule. Ansley v. Baker, 65 Am. Dec., 136.

Where the heirs or legatees attempt to proceed without an administration, the burden of proof is upon them to show that there is no necessity for an administration. Bowen v. Stewart, 128 Ind. 507.

Where there is a debt due the estate by a third person, or a third person who has property of the estate in his hands which he refuses to turn over, an administrator is necessary Croswell on Executors and Administrators, 13; Duggee v. Taylor, 60 Ala. 504; Baird v. Brooks, 21 N.W. 163.

Where there are creditors of the estate, an administration is necessary. 11 Am. & Eng. Ency. Law (2d ed.), 742, sec. 3, and cases in note.

True, complainants allege that "Emmons owed no debts at the time of his death," but there is no allegation that his estate owes no debts; and, as appears from the will, made a part of the bill, he expressly makes his funeral expenses a debt and a charge upon his estate, and there is no allegation that these have been paid or that there were none. And then it appears from the bill that the will was probated, and the court will judicially notice that there were costs, which were charges upon the estate incident to the probate, and there is no allegation that these costs have been paid by any one. The bill then proceeds to state that there is no necessity for an administration, this, of course, being a conclusion of law, not a fact well pleaded, and therefore not admitted by our demurrer. In the very next breath complainants proceed to show that they cannot sue for and recover this amount, for they allege that all of the property of the said decedent is specifically disposed of by his will, leaving no fund out of which to pay debts, except by cutting down the specific legacies--if the legacies, in fact, be specific. Complainants' allegation should have been that the estate owed no debts.

But not only is an administration necessary where the estate owes debts, but also where there is a debt due the estate for which a suit has to be brought (see authorities cited above); and the fact that this suit is brought at all is conclusive against complainants on this ground.

Complainants' right to sue for and recover this money, if they ever had any, became barred by the statute of limitations before the institution of this suit.

L. F. Rainwater, and W. E. Boothe, for appellees.

As a general rule, an executor or administrator is necessary where there are debts due from the testator or intestate, but when there are no debts owing by the testator or intestate, or when no necessity for an administration is shown, distributees or legatees may sue. Wood et ux. v. Ford, 29 Miss. 57; Farris Heirs v. Graves, 4 Smed. & M., 707; McRea v. Walker, 4 How., 455; Rabb v. Griffin, 26 Miss. 579; Archer v. Jones, 26 Miss. 583; Hill v. Boyland, 40 Miss. 642; Ricks v. Hilliard, 45 Miss. 359; Stauffer v. B. & A. Mort. Co., 77 Miss. 127; Traweek v. Kelly, 60 Miss. 656.

In the two last-cited cases the court announces the rule as well settled that when the intestate owes no debts and there is therefore no necessity for an administration, the distributees may sue in equity to recovery debts due the intestate. If a distributee may maintain a suit in equity to recover debts due the intestate, as clearly announced in the cases cited, supra, then it must necessarily follow that a legatee may also maintain a suit in equity to recover a debt due to his testator, especially when that debt is specifically bequeathed to the party suing. If there be any difference in the application of the rule, the advantage would be with the latter.

Neither the three nor the six years' statute has any application to this controversy. This is a case of an express trust, and therefore is barred only after ten years from the time the right of action accrued. Code 1892, § 2763.

Argued orally by A. W. Shands, for appellants.

OPINION

COX, J.

Mrs Sarah E. Pinkston and Samuel W. Emmons, complainants below and appellees here, in their bill against Samuel R. Patton and Julia A. Patton and W. A. Gage & Co., who are appellants here, allege that complainants and said Julia A. Patton, being the wife of said Samuel R. Patton, are the children and only heirs at law and distributees of Franklin Emmons, deceased, who died in 1904; that said Franklin Emmons left a last will and testament, which has been duly probated, naming one J. B. Boothe as executor, who has failed and refused to qualify, and that no letters testamentary or of administration have been applied for or issued; that at the time of his death the said Franklin Emmons owed no debts and had no debts due him, as far as complainants can ascertain, except as set out in said bill, and no necessity exists for any administration, all of his property having been specifically devised; that some time in 1895 the said Franklin Emmons turned over to said Samuel R. Patton, husband of his said daughter, Julia A. Patton, with whom he then resided and with whom he continued to reside until his death, in 1904, certain moneys described in said bill, with the understanding and agreement that the said Samuel R. Patton should lend or invest said moneys for the benefit and in the name of said Franklin Emmons, and that the income, or so much thereof as might be necessary for that purpose, should be used in paying the living expenses of said Franklin Emmons;...