Smith v. Garrett, 47321

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtROBERTSON; GILLESPIE
Citation287 So.2d 258
PartiesPauline SMITH, Executrix of Estate of Bessie C. Smith, Deceased v. Wayne GARRETT et al.
Docket NumberNo. 47321,47321
Decision Date17 December 1973

Page 258

287 So.2d 258
Pauline SMITH, Executrix of Estate of Bessie C. Smith, Deceased
Wayne GARRETT et al.
No. 47321.
Supreme Court of Mississippi.
Dec. 17, 1973.

Edwin Tharp Cofer, John T. Keeton, Grenada, for appellant.

Appellee did not filed brief.


Under the provisions of Section 11-77-13, Mississippi Code of 1972 Annotated (Supp.1973), (Section 1453, Mississippi Code 1942 Annotated (Supp.1972)), the wrongful death statute, Pauline Smith, as exectrix of the Last Will and Testament of Bessie C. Smith, Deceased, brought suit against B. I. Minyard and Ben Hughes in the Circuit Court of Leflore County for the wrongful death of the decedent.

The deceased was a widow and left no children, no father, no mother, no brother and no sister. The defendant offered $18,500 in full settlement of the suit. The executrix petitioned the Chancery Court of

Page 259

Grenada County to authorize and approve the compromise offer. The petition also stated:

'Petitioner further prays that upon the hearing hereon, the Court will order the sum of the money offered in compromise and settlement after the payment of said attorney's fee to be paid to petitioner, as Executrix of said Estate, there to be controlled by, and to pass under, the residuary clause of the Last Will and Testament of BESSIE C. SMITH, deceased, and not under the laws of descent and distribution for intestate successions.'

The Last Will and Testament of Bessie C. Smith provided:

'ITEM 9. I hereby give, devise and bequeath unto MISS PAULINE SMITH, the remainder and residue of all my property of every kind and character, whether real, personal or mixed, and wheresoever located.'

The executrix and sole residuary legatee was a sister-in-law of the deceased.

Eleven first cousis were named as defendants in the petition for approval of the compromise settlement and for distribution to the sole residuary legatee. Personal service of summons was had on the five cusins living in Mississippi and the six non-resident cousins were served by published summons. An attorney for a cousin living in Flint, Michigan, filed an entry of appearance for her but made no answer and was not present at the hearing. Arthur Garrett, a cousin, and a resident of Bolivar County, Mississippi, attended the hearing without counsel. He testified only as to the reasonableness of the compromise offer, but made no claim either orally or in writing to any part of the proceeds of the settlement.

The Chancellor ruled:

'It is the Court's conclusion that the proceeds shall be used, as if they were intestate property, to satisfy all debts of the estate, including a commission thereon of five per cent (5%) to the Executrix and, of course, the fee of her Solicitor for services in the suit which has been fixed and is likely already satisfied, but on other expenses of the administration shall be paid therefrom, and the net remaining thereafter shall be paid to the first cousins of decedent.'

The Final Order contained this language:

'Said remaining $10,000.00 is hereby adjudged to be intestate property, and shall pass under the Laws of Descent and Distribution for the State of Mississippi.'

Pauline Smith appeals and here contends that the court erred in not finding that the net proceeds of the compromise settlement should be paid to her as sole residuary legatee under the last will and testament of the deceased.

None of the eleven first cousins, as appellees, was represented by counsel in this Court, and no brief on behalf of any appellee has been filed. We could reverse this case and render judgment of the appellant because of the failure to file a brief under the authority of Transcontinental Gas Pipe Line Corporation v. Rogers, 284 So.2d 304 (Miss.1973); Jackson v. Walker, 240 So.2d 606 (Miss.1970); Charles F. Hayes and Associates v. Blue, 233 So.2d 127 (Miss.1970); United States Fidelity and Guaranty Co. v. State, 204 So.2d 852 (Miss.1967).

But we think it would be helpful to the bench and bar of the State to consider this case on its merits and to determine what the Legislature meant when it said:

'If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the...

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17 cases
  • Sweeney v. Preston, No. 90-CA-01336
    • United States
    • United States State Supreme Court of Mississippi
    • April 7, 1994
    ...a statutorily-created right nonexistent at common law, and we have consistently held it should be strictly construed. Smith v. Garrett, 287 So.2d 258 (Miss.1973); Boroughs v. Oliver, 217 Miss. 280, 64 So.2d 338 (1953); Hasson Gro. Co. v. Cook, 196 Miss. 452, 17 So.2d 791 (1944); Edwards v. ......
  • Edwards v. Sears, Roebuck and Co., No. 74-1800
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 25, 1975
    ...statute, being unknown to the common law, should be strictly construed and not extended beyond its terms. Smith v. Garrett, Miss., 1973, 287 So.2d 258, 260; Byars v. Austin, supra; Logan v. Durham, 1957, 231 Miss. 232, 95 So.2d 227, 229; Boroughs v. Oliver, 1953, 217 Miss. 280, 64 So.2d 338......
  • Gentry v. Wallace, No. 89-CA-133
    • United States
    • United States State Supreme Court of Mississippi
    • August 19, 1992
    ...the executors or other representatives." Thus, at common law, the wrongful death cause of action did not exist. Smith v. Garrett, 287 So.2d 258, 260 (Miss.1973); Logan v. Durham, 231 Miss. 232, 95 So.2d 227 The rule in Baker v. Bolton crossed the Atlantic Ocean and spread throughout th......
  • Franklin v. Franklin ex rel. Phillips, No. 2001-CA-01218-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 2003
    ...Miss. 452, 459, 17 So.2d 791 (1944)). On appellate review, we strictly construe Mississippi's wrongful death statute. Smith v. Garrett, 287 So.2d 258, 260 (Miss.1973) (collecting ¶ 15. The wrongful death statute recites a list of those persons who may act as the named plaintiff in an action......
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