Wright v. Wright

• Court: Mississippi Supreme Court
• Writing for the Court: Smith, C. J.
• Citation: Wright v. Wright, 160 Miss. 235, 134 So. 197 (Miss. 1931)
• Decision Date: 04 May 1931
• Docket Number: 29424
• Parties: WRIGHT et al. v. WRIGHT et al

134 So. 197

160 Miss. 235

WRIGHT et al. v. WRIGHT et al

No. 29424

Supreme Court of Mississippi

May 4, 1931

Division A

1 HOMESTEAD. Evidence that decedent Had formerly lived on land.,

6itt had ceased to do so for several months before his death, held insufficient to establish homestead (Code 1930, section 1776). The evidence showed that decedent had formerly resided on property, but did not show that his removal therefrom and ceasing to reside thereon for several months before his death was temporary by reason of some casualty or necessity, and with purpose of speedily reoccupying it as soon as cause of his absence could be removed, as required by Code 1930 section 1776, to constitute homestead.

2. DESCENT AND DISTRIBUTION. Mortgages. Title remained in grantor after executing deed of trust, and, on his death property descended to his heirs Code 1930, sections 1402, 2128).

As a result of the above rule, grantor's, heirs, and not grantor's administrator, were entitled to excess over debt on foreclosure sale under deed of trust.

3. EXECUTORS AND ADMINISTRATORS. Proceeds from foreclosure sale did not "accrue" to deceased grantor's estate so as to make excess over deed of trust debt payable to administrator, instead of to heirs (Code 1930, section 1643).

Money obtained from sale of property by trustee under deed of trust did not "accrue" to deceased grantor's estate, and would not accrue thereto within Code 1930, section 1643, so as to make excess over debt secured by trust deed payable to grantor's administrator, instead of to grantor's heirs, until court should so order in proper proceeding under statute permitting administrator to resort to decedent's realty for payment of decedent's debts, since there was no claim that it was necessary for administrator to do so.

4. EXECUTORS AND ADMINISTRATORS.

Rent accruing on decedent's realty during year of decedent's death held asset in administrator's hands (Code 1930, section 1643).

HON. F. F. MIZE, Chancellor.

APPEAL from chancery court of Jones county, Second district., HON. F. F. MIZE, Chancellor.

Suit by Otho Wright and others against Annie Wright and another. From an adverse decree, defendants bring an interlocutory appeal. Affirmed in part, and reversed in part and remanded.

Affirmed in part; reversed in part, and remanded.

D. B. Cooley, of Laurel, for appellants.

In order for the heirs of a decedent to recover in a suit brought by them against a debtor to decedent's estate, they must allege, and if the allegations is denied, prove, that there is no local administrator of the the estate, and that there exists no necessity for the appointment of one.

Richardson v. Neblett, 84 So. 695.

The bill of complaint does not allege this fact, and there is no testimony in support of it.

This suit violates and runs counter to our whole scheme of the administrations of estates.

Section 1643, Code 1930; sections 1626, 1656.

The court erred in excluding the testimony of Annie Wright by which it was sought to prove that the property was not the homestead of the deceased. The court excluded this testimony on the theory that as Annie Wright had a claim against the estate she was not competent to testify in this suit. It is our contention that the statute does not apply in this case.

Cole v. Gardner, 7 So. 500; section 1529, Code 1930.

Montgomery & Buchanan, of Laurel, for appellees.

Appellants, by inconsistent pleading, raised a false issue, to-wit: The right of the administratrix to collect the proceeds of the sale of the real estate.

Another issue attempted to be raised by appellants was the right of appellees as heirs of Van Wright to bring this suit. The only answer we make to that condition is simply referring the court to section 131, Griffith's Chancery Practice, and citations thereunder, and 24 C. J., page 798, wherein, it is stated that the heirs are the only persons who are entitled to bring such suits, except by special authority of the chancery court upon showing the insufficiency of personal property to pay the debts of decedent, or other special conditions which would warrant, an exception to the rule. In this case, no intimation of such reasons are found in the pleadings or proof.

Under no conditions is the administrator entitled to the exempt real estate as against the heirs.

Section 1410, Code 1930; Griffith's Chancery Practice, section 131.

Taking everything claimed by appellants as true, they are still barred under the rule laid down in 23 C. J. 1139, which is as follows:

"So where land belonging to the estate of a decedent is sold on foreclosure of vendor's lien notes, any excess of proceeds over the notes goes to heir at law."

Section 1755, Code 1930; section 2139, Code 1906.

OPINION

Smith, C. J.

The appellees exhibited an original bill in the court below against Annie Wright and D. B. Cooley, alleging, in substance, that they are the only heirs at law of Van Wright, who died seized and possessed of certain land, his homestead, on which he had given a deed of trust to Annie Wright to secure the payment of an indebtedness due her by him, in which deed of trust the appellant D. B. Cooley was trustee. After the death of Van Wright, Cooley sold the land in accordance with the provisions of the deed of trust, and Annie Wright purchased it for a sum in excess of the indebtedness due her by Van Wright.

The bill also alleges that Annie Wright has been in possession of said land since the death of Van Wright and prays for an accounting by the appellees for the surplus remaining after deducting the amount of the indebtedness due by Van Wright to Annie Wright from the amount paid or agreed to be paid by her for the land, and for an accounting from Annie Wright for the amount due by her as rent on the property after Van Wright's death.

The appellants' answer denied that the land was Van Wright's homestead, admitted the purchase at the trustee's sale by Annie Wright for an amount exceeding the debt secured by the deed of trust, and admitted that she had been in possession of the property for...