York v. York
| Decision Date | 22 January 1940 |
| Docket Number | 33991 |
| Citation | 187 Miss. 465,193 So. 330 |
| Court | Mississippi Supreme Court |
| Parties | YORK et al. v. YORK et al |
APPEAL from the chancery court of Tallahatchie county HON. R. E JACKSON, Chancellor.
Suit by Frank S. York and another, executors of the Estate of Sylvester York, deceased, against Walter York and others to attach certain property, to set aside certain conveyances and to subject lands belonging to some of the defendants to the alleged demands of the plaintiff. From a decree dismissing the bill, plaintiffs appeal. Affirmed.
Affirmed.
Jamie L. Whitten, of Charleston, for appellant.
Sec 173 of Code of 1930, providing for attachments in chancery is as follows:
Aetna Ins. Co. v. Robertson, 126 Miss. 387; Nugent & Pullen v. Robertson, 126 Miss. 419 at page 427.
The distributive share of Charles V. York to the estate of Mary S. York and held by the executors of the estate of Mary S. York as charged in the bill consisting of money and bonds or effects comes within the provision of Section 173 of the Code of 1930, requiring that some person in this state must have effects of, or are indebted to such absent or absconding debtor.
The court in the Aetna insurance case, 126 Miss. 387, states that the court, independently of statute, may hold the effects of the non-resident in the hands of the resident.
M. & O. R. R. Co. v. Swain, 164 Miss. 825; I. B. Rowell & Co. v. Sandifer, 129 Miss. 167; Griffin v. Levee Commissioners, 71 Miss. 767; Robertson v. Monroe County, 118 Miss. 547; Dollman v. Moore, 70 Miss. 267.
Sec. 363, Code 1930, is as follows: "Suits against executors, administrators, and guardians, touching the performance of their official duties . . . shall be brought in the chancery court in which the will was admitted to probate. . . ."
It was held in the recent case of State ex rel. Gully, State Tax Collector, v. Massachusetts Bonding and Insurance Co., 191 So. 285, a suit by the State of Mississippi on the relation of the state tax collector against the Bonding Company, surety on the bond of A. R. Hutchens, deceased chancery clerk of Humphreys County, and others, to recover money alleged to have been misappropriated, "that Section 352, Code of 1930, in part provides: 'The court in which a will may have been admitted to probate, letters of administration granted, or a guardian may have been appointed, shall have jurisdiction to hear and determine all questions in relation to . . . all demands against it by creditors or others.'"
Under this statute jurisdiction of all demands of creditors or others against an estate of a decedent is vested in the chancery clerk of the county in which letters of administration were granted even though there are other defendants to the suit, some of whom may reside or be found in counties other than that in which letters of administration were granted.
Buie v. Pollack, 55 Miss. 309.
How can the non-resident defendant be heard to object to the venue when the venue can be changed only on application of the resident householder and that where he is sued personally and not, as here, sued only nominally? Especially where the non-resident is charged with an effort to defraud his creditor, this complainant.
So. Pac. R. R. Co. v. Lyon, 99 Miss. 186, 54 So. 728, 34 L.R.A. (N.S.) 234, Ann. Cas., 1913D, 800.
Had this suit been filed in the Chancery Court of Yalobusha County, Mississippi, where the lands are situated, the chancery court of a different county and in fact a different chancellor, by its order would be directing the administration of the estate of Mary S. York probated in the First District of Tallahatchie County. It is easy to see that this condition is the very thing which Section 363, Code of 1930, provides against.
Clark v. L. & N. R. Co., 158 Miss. 287.
The Chancery Court of the First District of Tallahatchie County, having jurisdiction by reason of the attachment, will proceed to afford complete relief.
Griffith's Chan. Practice, Sec. 28; Baker v. Nichols, 111 Miss. 673; Vicksburg & Yazoo City Tel. Co. v. Citizens' Tel. Co. et al., 79 Miss. 341; Morrison v. Snuff Co., 79 Miss. 330.
Numbers of complainants with separate damages may sue one defendant--where injury is continuing in its nature, as maintenance of a nuisance injurious to all-- abatement of nuisance is ground of equity jurisdiction.
Y. & M. V. R. Co. v. McConnell, 127 Miss. 580.
A court of equity has jurisdiction to foreclose a deed of trust, and, having obtained jurisdiction of the subject matter and the parties, may take jurisdiction of all questions between the parties as to such contract, and in one suit may settle all matters flowing from such contract.
Robertson et al. v. Krauss & Sons, 129 Miss. 310.
Frank York is executor of the estate of S. York and as such is complainant and since he is executor of the estate of Mary S. York, his name appears as defendant. This is permissible.
Moore v. Ferguson, 72 N.E. 126; Powell v. Jackson, 111 N.E. 208; Pardee v. Mut. Benefit Life Ins. Co., 265 N.Y.S. 837; Velten v. Western & So. Life Ins. Co., 76 S.W.2d 1035.
There is no other remedy available.
21 C. J. 71, Sec. 47 and note 54; Penn v. Brooks, 6 How. (Miss.) 373; Dawson v. Clark, 3 Sneed (Tenn.) 438; Cooper v. Nelson, 38 Iowa 440.
This is not a suit to remove cloud on title but is primarily a suit in attachment against a non-resident. This court has jurisdiction as hereinbefore set out.
The sole question before the court on the motion to dismiss is whether this court shall retain jurisdiction of the attachment suit. If the court retains jurisdiction, then and then only will the question arise as to whether the court, ancillary to the attachment suit, can determine whether these lands are in reality the lands of C. V. York and affix a lien against such lands to pay the unpaid balance of the debt of C. V. York to the S. York estate after the application of the sum owed C. V. York by the Mary S. York estate to said indebtedness as adjudged by the court.
Thus there can be no question that the bill charges an indebtedness due the estate of S. York by Charles V. York; that S. York intended the debt to be paid at the time of the loan and at the time he executed his last will and testament.
It is said that the codicil to the first will which was signed by Charles V. York terms this an advancement. It is so termed in the instrument. However, all the children of S. York signed this codicil showing what they had each borrowed from S. York. This fact does not make this advancement.
The doctrine relating to advancements in the strict sense applies only in case of intestacy.
Sec. 1409, Code 1930; Whelan v. Whelan, 27 Pa. Co. 161.
An instrument given by a son to his father, wherein he acknowledged himself indebted in a certain sum as an advancement, and agreed to pay interest thereon, which was to be deducted from his share of the estate, is an evidence of an indebtedness, and not a mere advancement; and the subsequent execution of a will in which the same was not recognized did not convert the alleged advancement into a gift.
Kinney v. Newbold, 88 N.W. 328; Ritch v. Hawxhurst, 21 N.E. 1009; Francis' Estate, 212 N.W. 306; Welch v. Welch, 147 Miss. 728.
Where a testator during his life made advancements to his adult children, taking receipts from them in full of their interest in his estate, the receipts are in the nature of contracts and extinguish the rights of the parties giving them, and of their heirs, in testator's estate.
Norfleet et al. v. Kate Callicott et al., 90 Miss. 221.
Where no contract, because of no consideration, party should not be bound.
Francis' Estate, 212 N.W. 306; Ritch v. Hawxhurst, 21 N.E. 1009; Appeal of Potts (Pa.), 10 A. 887; Dawson v. Macknet, 8 A. 312; Appeal of Thompson, 42 Pa. 345; Hays v. Welling, 96 A. 843, 98 A. 61; Dramer v. Lyle, 197 F. 618, 201 F. 248; Lanings Estate, 88 A. 289; Barnetz's Estate, 31 Pa. Co. 522; Dares Estate, 24 Pa. Co. 58; Beckhans v. Ladner, 21 A. 724; Hopkins v. Holt, 9 Wis. 228; Aster v. Ralston, 179 Ill.App. 194.
As to revocation of former will by subsequent will, see 68 C. J., Secs. 491, 559; 69 C. J. 1031, Sec. 2233.
Where a will is revoked in toto, whether by the act of the testator or by operation of law, such will is ordinarily held to be void for all purposes, and where the revocation is effected by reason of the execution of a subsequent will, this later will alone is effective."
Succession of Gilmore, 102 So. 94; Hartwell v. Rice, 1 Gray (Mass.) 587.
A writing executed in the form of a will may confer rights which may be enforced against heirs of deceased, notwithstanding its revocation as a testamentary instrument.
Ellsworth v. Aldrich, 295 S.W. 206.
One may do what he will, with legal limits, with his own.
Hiserodt v. Hamlett, 74 Miss. 37; Holcomb v. Holcomb, 173 Miss. 192.
The debt claimed is not barred by the Statute of Limitations.
Sec 2310, Code of 1930; Mason v. Stroud, 155 Miss. 829; Robinson v. Moore, 76 Miss. 89; 50 C....
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