45 Miss. 30 | Miss. | 1871
This case comes here from the probate court of Chickasaw county. It appears from the records that Jesse Seale, James Bailey and R. C. Bowen were joint executors of the will of Greorge Bowen, deceased. After several years of joint exercise of this trust, Jesse Seale died, and Jerry Seale and Ann Seale were appointed administrator and administratrix of his estate. Afterward the letters of James Bailey and R. C. Bowen, as executors of Greorge Bowen, deceased, were revoked, and M. J. K. Bowen was appointed administrator, de bonis non. In: January, 1866, the administrator and administratrix of Jesse Seal, deceased, filed with the probate court of
Thereupon it was ordered that notice be given to the several persons interested in the matters of said account, to be returnable to the March term, 1866, of that court. Publication of the notice was also ordered.
Except in the recitals of the final decree, there is nothing in the record to show service or publication of the notice.
At the September term, 1866, the court made its final decree, by which the estate of Greorge Bowen, deceased, is decreed to be indebted to Jesse Seale, as executor, etc., in the sum of $548 25, and that Jerry Seale and Ann Seale, administrator and administratrix, have and recover of M. J. K. Bowen, administrator, etc., to be levied of the goods and chattels, lands and tenements, of the estate of Greorge Bowen, deceased, in his hands, for which execution may issue.
At the May term, 1867, of the court below, M. J. K. Bowen, administrator,, etc., filed a bill of review, asking the correction of alleged errors in said final account. A demurrer to this bill was sustained by the court.
At the June term, 1867, of the same court, the said administrator filed an amended bill of review, setting out the appointment of Seale, Bailey and Bowen as executors of Bowen, deceased; his own appointment as administrator; the decease of Jesse Seale; the appointment of Jerry Seale and Ann Seale as administrator and administratrix of the estate of Jesse Seale, deceased; the filing of the final account of Jesse Seale, deceased, as one of the executors of Greorge Bowen, deceased; the decree thereon, with the allowance of execution; that there was allowed in the final account the sum of $1,148 05, without vouchers and without authority of law, which had been before allowed in the first annual account of Jesse Seale, deceased, in his life-time; that Jerry Seale and Ann Seale, administrator and administratrix, fraudulently concealed from the complainant the fact that the above sums had been once allowed to the intestate in
Tbe bill of review, as amended, is sworn to.
To this amended bill a demurrer was filed, stating tbe following causes of demurrer:
“1. No such interest is shown in tbe subject-matter of said bill as will entitle said complainants to institute or prosecute tbe same.
“2. Tbe said bill does not allege or set forth tbe errors in law, apparent upon tbe face of tbe decree sought to be reviewed.
“3. Said bill does not show new relevant matter discovered in time, since tbe rendition of tbe decree attempted to be reviewed, tbat might not, with reasonable diligence, have been used before tbe rendition thereof.
“4. No such fraud, is shown as will authorize tbe court to set aside tbe decree assailed by tbe bill of review.”
Tbe court overruled tbe first cause assigned for demurrer and sustained tbe remaining causes, and dismissed tbe bill.
“1. The court below erred in allowing the final account of Jesse Seale, one of the executors of the last will and testament of George Bowen, deceased, without first bringing into court, by process or by publication of notice, James Bailey and R. C. Bowen, Ms co-executors.
“2. The court below erred in allowing to Jesse Seale, one of the executors of the last will and testament of George Bowen, deceased, in this: That it was composed, in part, of credits transcribed from exhibit ‘ B ’ to said final account and in items, as stated in exhibit ‘B,’ say, for ‘cash paid executor,’ alias himself, $1,000, without any legal voucher, and not in satisfaction of any just or legal demand against the estate of George Bowen. Also, for this sum, ‘cash paid same, $100,’ without any voucher, and not in satisfaction of any just or legal demand against the estate.
“4. The court below erred in sustaining the demurrer of Jerry Seale and Ann Seale, administrators to the bill of reviews filed by M. J. K. Bowen, admin strator de bonis non and heir of George Bowen, deceased.
“5. The court below erred in sustaining the demurrer of Jerry Seale and Ann Seale, administrators to the amended bill of review filed by M. J. K. Bowen, administrator de bonis non and heir of George Bowen, deceased.
“6. The court below .erred in dismissing the amended bill of review, without giving M. J. K. Bowen the right or opportunity to plead further, having overruled the first cause.
“7. The order of publication for the non-residents, heirs of George Bowen, does not state their post-office, nor does it require the clerk to send notice to them.
‘ ‘ 8. The decree against appellant as administrator de bonis non of George Bowen, directs the issuance of an execution, to be levied of the goods and chattels, lands and tenements, in Ms hands to be administered. The error is in decreeing an execution to be levied of the lands and tenements.”
Errors in the dismissal of a bill of review, and errors in the final decree sought to be reviewed, maybe examined by. one and the same writ of error (33 Miss. 560), unless the recitals in the final decree may be so regarded; the record affords no proof of service and publication of notice of final settlement, as ordered by the court. Nothing appearing in the record to falsify these recitals, they are held to be, at least, sufficient. 8 Smedes & Marsh. 421; 2 ib. 213; 14 ib. 75; 1 How. 527; 29 Miss. 138; Barker v. Shepard, 42 ib.
The final decree, in awarding execution against “lands and tenementsin the hands of the administrator, was erroneous. Were this the only error, it might, perhaps, be corrected, and judgment here ; but the case must go back to be heard on the merits. Buckingham v. Nelson, opinion book J.
Within the case of Gradsberry v. Perry, 28 Miss. 118, the bill of review in the case at bar was amply sufficient, without the allegations of fraud. The court erred in sustaining the second, third and fourth causes of demurrer, and in dismissing the bill. The bill charges that the sum of about $1,200 had been previously allowed to Jesse Seale without authority of law, and without any legal authority of the court to allow the same, the said sum having been appropriated to his own use and benefit, and allowed as a credit, without any legal oj; proper vouchers, contrary to law, and
Art. 33, p. 431, Rev. Code, is substantially the same as Hutch. Code, and Gadsberry v. Perry, 27 Miss., is the law of this class of cases.
The decree of the probate court dismissing the amended bill of review, and in sustaining the demurrer thereto, is reversed, and this cause is remanded to the chancery court of Chicliasaw county.