Shepherd v. Townsend, 42920

• Citation: 162 So.2d 878,249 Miss. 383
• Decision Date: 13 April 1964
• Docket Number: No. 42920,42920
• Parties: , 10 A.L.R.3d 538 William Garland SHEPHERD v. Mrs. Margie TOWNSEND et al.
• Court: Mississippi Supreme Court

Page 878

162 So.2d 878

249 Miss. 383, 10 A.L.R.3d 538

William Garland SHEPHERD v. Mrs. Margie TOWNSEND et al.

No. 42920.

Supreme Court of Mississippi.

April 13, 1964.

Johnson, Troutt & Moore, Senatobia, for appellant.

Walker, Franks & Hamberlin, Hernando, A. M. Warwick, Carthage, Snow, Covington, Shows & Watts, Meridian, for appellees.

GILLESPIE, Justice.

Mrs. Ammie Barnes Thomas, an 86 year old widow, a resident of Leake County, died testate on October 13, 1958. Her will gave her personal estate to her nearest of kin according to the laws of descent and distribution. The will did not name the nearest of kin. The appellee, Mrs. Margie Townsend, was named executrix and she duly qualified, with the appellee, United States Fidelity and Guaranty Company, as surety.

After reducing the personal assets to cash, the executrix filed her final account on May 15, 1959. The executrix stated in her final account the three nearest of kin of the decedent were Robert S. Castle, Mrs. J. B. Garner, residents of Tate County, and Mrs. W. M. Garner, a resident of DeSoto County, first cousins of the decedent. The said first cousins waived process and in the waiver made oath that they were the nearest of kin of the decedent, whereupon no further process was had and on May 25, 1959, the court entered a final decree ordering the net personal estate distributed one-third each to Robert S. Castle, Mrs. J. B. Garner and Mrs. W. M. Garner. Distribution was made accordingly and each received $9,551.38 cash.

This suit was filed by William Garland Shepherd, appellant herein, on March 21, 1962, more than two years after the decree ordering distribution of the estate. He sued Mrs. J. B. Garner, Mrs. W. M. Garner, Mrs. Margie Townsend, the executrix, and the surety on her bond, the United States Fidelity & Guaranty Company. Robert S. Castle died before this suit was filed and his sole heir was made a defendant, but the suit was dismissed as to said heir. It was charged that the complainant, William Garland Shepherd, was a half-uncle of the decedent and her nearest of kin according to the laws of descent and distribution; that the three first cousins to whom the estate was paid fraudulently concealed the fact of complainant's existence from the court and that the appellant was a necessary party to the final account and other proceedings in the administration of said estate, and that all the proceedings in connection with the distribution of said estate were void. The bill of complaint charged negligence and lack of diligence on the part of the executrix in not ascertaining that appellant was the decedent's heir. The original bill prayed for judgment against all the defendants for the illegal and wrongful distribution of the estate.

The chancellor found that the appellant, William Garland Shepherd, was an uncle of the half-blood of the decedent and her nearest of kin under the laws of descent and distribution, and that the decree approving the final account and directing distribution of the estate was not res judicata as to appellant. Judgment was rendered against Mrs. J. B. Garner and Mrs. W. M. Garner for the amounts received by them. The chancellor found there was no lack of diligence on the part of the executrix or her attorney and that they acted in good faith and with reasonable diligence. He dismissed the bill as to the executrix and her surety. William Garland Shephered appealed to this Court complaining that the chancellor erred in dismissing the bill as to the executrix and her surety. Appellant, William Garland Shepherd, had no notice, actual or otherwise, of the death of decedent or the distribution of her estate.

This appeal raises two principal questions: (1) Is the decree approving the final account of the executrix and ordering distribution of the personal estate to the wrong persons conclusive? and (2) if not, was the executrix negligent in failing to ascertain that appellant was the next of kin of decedent? Several subsidiary questions are necessarily involved in reaching and disposing of these main propositions.

Appellees devote a considerable part of their brief to the proposition that the decree ordering distribution of the estate was conclusive and not subject to collateral attack.

Code Sec. 639 ¹ provides that the final account shall contain a statement under oath 'of the names of the heirs or devisees and legatees of the estate, so far as known, * * *; the places of residence of each and their post-office address if they be non-residents; or, if the post-office address be unknown, the statement must aver that diligent inquiry has been made to learn the same without avail, * * *.' Code Sec. 640 requires that the final account with the statement of parties shall remain on file subject to inspection of any person interested and summons shall be issued or publication be made for all parties interested, as in other suits in chancery court, to appear at a term of the court not less than one month from the service of the summons or completion of the publication, and show cause, if any they can, why the final account should not be allowed and approved. Code Sec. 646 provides that any person interested may be bill or petition open the account and surcharge and falsify the same at any time within two years after final settlement, and not after. Code Sec. 1270 provides that any person interested in the estate of a deceased person may petition the chancery court of the county of the residence of such deceased person for the purpose of having the heirs at law of such deceased person recognized and decreed to be the heirs at law of said deceased. Code Sec. 1271 provides for summons to those named in the petition who do not join therein. 'And in addition thereto a summons by publication shall be made addressed to 'the heirs at law of _____ deceased," and shall be published as other publications to absent or unknown defendants. Upon satisfactory evidence a decree shall be entered that the persons named are recognized as the heirs at law of the said deceased. Said Code section then provides: 'And said decree shall be evidence in all the courts of law and equity in this state that the persons therein named are the sole heirs at law of the person therein described as their ancestor.' Code Sec. 1272 provides that said decree so rendered shall not be assailed collaterally, except for fraud, and shall be binding and conclusive upon all persons cited to appear from the date of its rendition, and upon all persons whomsoever from and after the expiration of two years from the date on which it was rendered, saving to minors, etc.

The appellee, Mrs. Townsend, as executrix, did not proceed to determine the heirs at law of the decedent by combining the final account with a proceeding provided by Code Sec. 1270 et seq. She undertook to advise the court who the heirs were, took waivers from those persons, and the final decree for distribution followed with summons being served on no one. She did this in good faith on the basis of her belief that those whom she named were in fact the heirs at law entitled to the personal estate.

A decree directing final distribution of the personal estate made in conformity with law is conclusive as to every matter involved and constitutes a bar to further proceedings concerning the same matter. 21 Am.Jur., Executors and Administrators, Sec. 488; 34 C.J.S. Executors and Administrators Sec. 904. In order for the decree to be in conformity with law the court must have jurisdiction of the parties and the subject matter. In this case the court did not have jurisdiction of appellant who was the only heir at law and a party in interest. Therefore, the decree was not made in conformity with law and was conclusive only as to those persons who were parties thereto. Appellant may collaterally attack the decree. The conclusive effect of the decree provided by Code Section 646 is not available to appellees because the decree was not made in conformity with the applicable statutes. Lowry v. McMillan, 35 Miss. 147, is not controlling. In that case the administrator acted in accordance with a decree the validity of which this Court assumed because the record did not contain the proceedings which resulted in the decree.

In the vast majority of estates the heirs are known and their names and places of residence are stated in the final account. Waivers are then secured from the heirs so named, or summons is served on them, and a decree is entered approving the final account and ordering distribution. Such decree is conclusive after two years as provided by Code Sec. 646 as to all persons who were parties to the proceeding and those in privity with them.

The general rule is that where an executor or administrator negligently...