Smith v. Garrett

• Decision Date: 17 December 1973
• Docket Number: No. 47321,47321
• Parties: Pauline SMITH, Executrix of Estate of Bessie C. Smith, Deceased v. Wayne GARRETT et al.
• Court: Mississippi Supreme Court

Page 258

287 So.2d 258

Pauline SMITH, Executrix of Estate of Bessie C. Smith, Deceased v. 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.

ROBERTSON, Justice:

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 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 damages shall go to the legal representative, subject to debts and general distribution, . . .' § 11-7-13, Miss. Code 1972 Annotated (Supp.1973), (§ 1453, Miss. Code 1942 Annotated (Supp.1972)), (Emphasis Added).

The other pertinent parts of the wrongful death statute provide:

'Whenever the death of any person shall be caused by any real wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, . . . and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.

'. . . Damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:

'Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to...