134 Tenn. 517 | Tenn. | 1915
delivered the opinion of the Court.
This action originated by a petition filed in the county court by John Black et al., as heirs at law of Miss Jennie Black, who died intestate, owning certain personal property in said county, in 1913. Prior to her death she had qualified as administratrix c. t. a. of the estate of her brother, Nathaniel Black, but she died before -she had filed an inventory as such personal rep-resenative. After her death James K. Black qualified as administrator c. t. a. of the estate of Nathaniel Black, and also qualified as administrator of the estate of Miss Jennie Black, and as administrator of each of these estates James K. Black, on September 27, 1913, filed in the county court an inventory. In each of these inventories he charged himself with certain personal property, the items of which were fully set out. One of the items of the inventory which he filed as administrator of the estate of Nathaniel Black is the sum of one thousand seven hundred and sixteen dollars and thirty-eight cents. On February 2,1914, the petition in the present action was filed against said administrator. It averred that he had fraudulently charged the
The administrator, by way of defense, met this petition by a demurrer, based on the following grounds: First, that the petition was prematurely filed, under .the provisions of section 4007, Shannon’s Code; second, that the court was without jurisdiction to entertain the petition; third, that the petition was unknown to the' forms of law. The probate court sustained the
It is manifest that all the courts have fallen into error upon this matter. Each of them went off upon the idea that the county court had no jurisdiction to entertain the petition as the beginning of an independent and original action drawing into question the title to property. Viewed from that aspect the petition was not maintainable. Linnville v. Darby, 1 Baxt. (60 Tenn.), 307; Dean v. Snelling, 2 Heisk. (49 Tenn.), 484; Walsh v. Crook, 7 Pick. (91 Tenn.), 388, 19 S. W., 19. But the true view is that the probate court should have sustained the petition as a suggestion filed in that court under section 4039 of Shannon’s Code, which provides:
“Any person interested in any deceased person’s estate as legatee, distributee, widow, or creditor, may, at any time before - final settlement of such estate, suggest to the court and show by proof that the representative has not returned a complete inventory, and the article or articles omitted in the inventory shall he debited-to the representative at the value thereof, unless he can show a sufficient legal reason for leaving, the same out of the inventory.”
See, also, section 3977, Shannon’s Code.
“When an account has been finally settled by the county court, either party may appeal from the judgment of the court to the chancery (court) or circuit court, and the appeal shall be brought before the chancellor or circuit judge at his first session in such county or district, and it shall be sufficient to take up on said appeal only so much of the record as will suffice to present the matter complained of in the decision below.”
See section 4040, Shannon’s' Code.
Section 6030 of Shannon’s Code, in connection with section 6027 and the fourth subdivision thereof, vests
“We are not aware that the question has been adjudicated in this State. But it has been decided by the supreme court of North Carolina upon the same statute. Judge Graston says: ‘ The act of assembly making it obligatory on executors to settle the estate at the end of two years after the administration shall have begun, does not authorize them to defer the settlement until that time without necessity; and it is competent for those interested to file their bill, or present their petition for such a settlement as soon as they think proper —the proceeding's on such a bill or petition being under the control of the court, who can prevent a premature*523 decision thereon and have the question of costs at their disposition.’ ”
This court, in the same case, said further:
“There is no reason why the persons entitled to an estate should be delayed two years when it is known there .are no debts. If this be doubtful, the court will - see that no injustice is done the executor by a premature decree against him, but will hold up the case or see that he is fully secured or indemnified.”
In the further course of the opinion the court makes reference to the proper course of procedure in such cases. See Taliaferro v. Wright, 1 Shan. Cases, 178.
The petition in the present case was not a bill in chancery filed by distributees and legatees for the purposes discussed in the case last above cited. The scope of the petition has already been indicated. The case last above cited is here mentioned merely in order to indicate the construction which this court has placed upon the legislation therein referred to. When an executor or administrator is cited to make settlement, under section 4033, Shannon’s Code, the parties interested are entitled to notice of the time of stating’ the account (see section 4034, Shannon’s Code); and the personal representative may be examined on oath (see section 4035, Shannon’s Code). For sufficient cause the settlement may be continued from time to time. See section 4036-, Shannon’s Code. The clerk shall charge the accounting party “with all sums of money as he has received, or might have received by using due and reasonable diligence, and shall credit him with
We have sufficiently indicated the course of action which should be taken upon the petition as a suggestion under section 4039 of Shannon’s Code, upon the remand of the cause to the county court.
In various phases the legislation embodied in sections 4031 to 4046, Shannon’s Code, has been before this court for construction. These cases are collated and referred to under the appropriate sections, in Mr. Shannon’s recent work entitled “Citations of Constitution, Code and Acts of Tennessee.” See pages 119 and 120.
For reasons already indicated the judgment of the court of civil appeals is reversed, and this cause is remanded to the county court of Davidson county, to be proceeded with in accord with the rights of the petitioners, as indicated in this opinion, and a copy hereof will go down with the procedendo on the remand.