Sims v. Hodges

• Decision Date: 30 January 1888
• Citation: 65 Miss. 211,3 So. 457
• Court: Mississippi Supreme Court
• Parties: THOMAS W. SIMS, Executor v. KATE HODGES ET AL

3 So. 457

65 Miss. 211

THOMAS W. SIMS, Executor v. KATE HODGES ET AL

Supreme Court of Mississippi

January 30, 1888

APPEAL from the Circuit Court of Chickasaw County, HON. LOCK E HOUSTON, Judge.

This is an action of ejectment and was brought by Thos. W. Sims, as executor of the estate of Virginia P. Sims, deceased, against Mrs. Kate Hodges and others to recover possession of certain land in Chickasaw County. On the trial plaintiff introduced a copy of the will of Mrs. Sims, deceased, which had been duly probated in Chickasaw County, and in which Thos. W. Sims was named as executor. The will was executed in Mobile, Ala where the decedent had lived and died, and the executor was also a resident of that city. The will provided, after devising all of the testatrix's property real and personal to her child or children, as follows: "As to any and all other lands of mine and real estate, outside of the said pavilion tract and Choctaw Point tract, and outside of said lands lying between Tennessee and Virginia streets above referred to, it is my will and desire that the executor of my last will and testament shall have, and I do hereby give to him, full power and authority to sell and dispose of the same, and of each and every part thereof as he may deem best for the interest of my said child or children surviving me, and for cash or upon such terms as my said executor may deem advisable." The lands mentioned specially above are not situated in this State, so that the power to sell "other lands" included those lying in this State. The plaintiff also offered a certified copy of the letters testamentary granted to him by the Probate Court of Mobile County, Ala.; but showed no such letters granted in this State. The plaintiff also offered a certificate in accordance with the provisions of Sec. 2091, Code of 1880. This certificate was as follows:

"State of Alabama, Mobile County.

I Price Williams, Jr., Judge of the Court of Probate in and for said County and State hereby certify that the said Thos. W Sims is duly qualified to act as the executor upon the estate of Virginia P. Sims, deceased, and that said Sims will be liable to account before the said Probate Court of Mobile County for such matters and things as may come to his hands or possession, as such executor, by suit or otherwise.

Evidence to show the title of Virginia P. Sims, deceased, to the land in dispute was offered. Upon motion of the defendants, all the evidence of plaintiff was excluded and the Court instructed the jury to find for the defendants.

The plaintiff appealed.

Affirmed.

T. J. Buchanan & W. R. Harper, for the appellant.

The will shows that the executor had full control over and was liable to account for both the reality and the personalty. A copy of the will having been duly probated, it was there to speak for itself; and the certificate of the probate judge that the executor was liable to account for the realty was wholly unnecessary.

It was, therefore, not necessary either to comply with Section 2091, or to take out letters in this State; but if necessary, Section 2091 was substantially complied with and this would seem to be sufficient.

As to the ground that letters of executorship must in all cases first be taken out in this State before suit to recover realty, we say (1) that an executor under a probated will which gives him control over the realty is not required to take out letters before suit. The power to sue arises by virtue of the will. The letters are merely evidence of identity, and are only needed at the trial to establish that the party suing is the one named in the power.

Crusoe...