Townsend v. Beavers
| Decision Date | 17 April 1939 |
| Docket Number | 33661 |
| Citation | 185 Miss. 312,188 So. 1 |
| Court | Mississippi Supreme Court |
| Parties | TOWNSEND v. BEAVERS et al |
Suggestion Of Error Overruled May 29, 1939.
APPEAL from the chancery court of Scott county HON. A. B. AMIS, SR. Chancellor.
Proceedings in the matter of the final account of T. W. Townsend administrator, to which Mattie B. Beavers and others filed exceptions and objections. From the decree, the administrator appeals, and the objectants cross-appeal. Affirmed on cross-appeal, and reversed and remanded on direct appeal.
On suggestion of error. Suggestion of error overruled.
Affirmed on cross-appeal, and reversed and remanded on direct appeal. Overruled.
Percy M. Lee, Jr., of Forest, for appellants.
This administrator gathered these heirs together with his attorney for the purpose of going over a number of claims, which he had received against the estate. He wanted to find out if they wished to contest any of the claims and if so which ones. This administrator reasoned that the heirs would know more than anyone else about the legitimacy and justice of the claims. Well, they all met together, went over the claims and they were thoroughly explained, at the conclusion of which the heirs told him to pay the claims and insisted that he pay them. Then, after having been satisfied that the claims were legitimate, and after having been urged by the heirs to pay them, and by direction of the Chancellor also to pay them, he prepared a petition and presented it to the court for the payment of the claims and it was so decreed by the Chancellor. Is this administrator, who tried to perform his duty well, and who acted in good faith and without negligence, under these circumstances, to be made personally liable when he was directed both by the heirs and the court to pay these claims. Such, we submit, is not the law of this land.
We submit, even though the form of the probate was not sufficient, the heirs, by their conduct, waived such defect, and acquiesced in and assented to payment.
The heirs, by their conduct, are estopped from claiming personal liability against appellant.
Appellant acted under direction of the court.
It is shown by the testimony that the claims were presented to the Chancellor and that he picked them up and looked at them; that he independently suggested that the claims for last illness of the decedent be paid immediately; and that after having been asked in a petition to determine whether or not the accounts be paid and to direct the petitioner accordingly, he gave a decree ordering said claims to be paid. Certainly, under these circumstances, it would be an unjust thing to hold this administrator personally liable for the payment of these claims.
Stevens v. Dunlap Mercantile Co., 67 So. 160.
O. B. Triplett, Jr., of Forest, for appellees.
The claims of Jackson Infirmary, Farmers and Merchants Bank, and of Drs. Crisler and Rembert were illegally probated; and six months after notice to creditors issued these claims were void.
M. & M. Bank v. Fox, 147 So. 790, 165 Miss. 835; King v. Jones, 158 So. 796, 171 Miss. 886; Bankston v. First Natl. Bank, 171 So. 18, 177 Miss. 719; Jordon v. Love, 157 So. 877, 171 Miss. 523; Gray v. Love, 161 So. 679, 173 Miss. 390; U.S. F. & G. Co. v. McCain, 101 So. 197, 136 Miss. 30.
The jurisdiction of the chancery court over receivership proceedings, and in the full control exercisable over receiver, is original, general and inherent in courts of equity jurisprudence.
53 C. J., page 39, sec. 36, and page 142, sec. 173.
The jurisdiction of the Chancery Court over matters testamentary and of administration is not native to courts of equity; and, while a general jurisdiction is conferred by our constitution, the jurisdiction may be regulated by the legislature.
Griffith's Chancery Practice, sec. 18, page 18; Railroad Co. v. Blythe, 69 Miss. 939, 11 So. 111; Ames v. Williams, 17 So. 762, 72 Miss. 760; Servis v. Beatty, 32 Miss. 52; Amis on Divorce and Separation in Mississippi, pages 328, 329.
An administrator is merely a statutory trustee and derives his powers, rights, duties and liabilities from legislative enactments, which cannot be enlarged, modified or affected by a decree of court; and a decree attempting to confer on him any power, right, privilege or immunity not granted by statute is a nullity.
Alexander v. Herring, 50 So. 360, 99 Miss. 427.
Section 1674, Code of 1930, expressly warns that an administrator "shall not pay any claim against the deceased, unless the same has been probated, allowed and registered;" and the court cannot order him to pay such a claim and thereby enlarge his power.
Lehman v. Powe, 49 So. 622, 95 Miss. 446; O'Bryan Bros. v. Wilson, 38 So. 509, 86 Miss. 540.
The allowance of the claims was not conclusive upon the heirs and devisees until the administrator's final account was presented.
Code 1930, sec. 1736; 24 C. J. 383, sec. 1064.
The exceptions filed by the heirs were not precluded by principles of waiver or estoppel.
The decree to sell land and pay debts was not res judicata as to the balance of $ 317.14 which was said in appellant's petition to be due F. & M. Bank; and the Chancellor erred in so holding, for the waivers executed by Mrs. J. A. Beavers, Mrs. W. P. Moore, Mattie Belle Beavers, Edna Mae Beavers and Mrs. O. R. Fairchilds were insufficient to constitute a legal waiver of process or an appearance.
Industrial Investment Co. v. Standard Life Ins. Co., 149 So. 883, 170 Miss. 138; chap. 244, Laws of 1936.
The nonresident heirs, N. N. Beavers and Mrs. Louise Honneycutt were not effectually served with process.
Shelby v. White, 131 So. 343, 158 Miss. 880; Cratin v. Cratin, 173 So. 415, 178 Miss. 881; Griffith's Chancery Practice, secs. 235, 236.
The judgment creditors were necessary parties to the petition to sell lands to pay debts.
Brickell v. Lightcap, 76 So. 489, 115 Miss. 417; Mullin v. White, 134 Ia., 681, 112 N.W. 164.
The validity of the outstanding claims was not necessarily involved in the petition for sale of lands to pay debts.
Thompson v. Hill, 119 So. 322, 152 Miss. 388; TrueHixon Lbr. Co. v. Thorn, 158 So. 909, 171 Miss. 783; Gladney v. Gladney, 106 So. 768, 141 Miss. 366.
Argued orally by Percy M. Lee and Percy M. Lee, Jr., for appellant, and by O. B. Triplett, Jr., for appellees.
This appeal involves as its main issues, those presented by the amended and supplemental exceptions and objections of the heirs at law to the final account of the administrator, and their effort to surcharge that account, because of the payment by the administrator, out of the assets of the estate, of five notes which the heirs now aver were not legally probated against the estate.
Two of these notes were those of the Farmers and Merchants Bank, one for the original principal sum of $ 450 and the other for $ 1000. We are not permitted here to inquire into the validity of the probate of the aforementioned two notes, for the reason now to be stated.
About four years after the administration had been opened, and after the administrator had collected all the personal assets of the estate that could be collected, he presented, on December 9, 1935, his petition to sell a part of the real property to pay the remaining debts of the estate, and, among these remaining debts or balances of debts, he listed in the petition as one of the items a balance due to the said Bank in the sum of $ 514.59. And he made as parties defendant to said petition all the eight heirs and distributees of said estate, all of them being adults.
Two of these heirs were nonresidents, and they were brought into court by published process. It is contended that this process was void, for the reason that the allegations in the petition did not sufficiently state the post office address of the two nonresidents--in fact, that the petition did not give any post office address at all. The decree recited that these nonresident defendants were served with process "by publication thereof in the News Register on February 27, 1936, and March 5, 1936, and March 12, 1936, and by mailing copies of said process to the said defendants to their post office addresses, and that said process is, in all respects, and in the service thereof, in accordance with the statutes, proof of all of which is on file in this cause." It is not shown by any proof in this record that there was not some sufficient affidavit for the process by publication, aside from the allegations in the petition itself; and in view of the decree the existence of such a sufficient affidavit will be presumed when there has been no such an affirmative showing as would exclude the existence thereof. Brotherhood Trainmen v. Agnew, 170 Miss. 604, 613, 155 So. 205.
The third of the heirs was summoned by process, personally served upon him, and the other five appeared by waivers. These waivers were in identical language, and one of them, as a sample of the others, is copied, as follows:
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