29 Miss. 127 | Miss. | 1855
delivered the opinion of the court.
The petition alleges, “ that William H. Shelton, late of said county of Rankin, departed this life intestate,” some ten years ago, leaving no last will and testament, and having appointed no executor; that no administrator has been appointed, and that no person will taire letters of administration on the estate, and that the petitioner “ is interested in a debt due from said intestate’s estate.”
The widow of the deceased, having been- cited to answer the petition, demurred to it, and the demurrér was sustained, and this appeal was thereupon taken.
In order to justify the probate court of any particular county in granting administration of the estate of any deceased person, it must appear either that the deceased, at the time of his death, had a mansion-house or known place of residence there, or otherwise that his estate, or the greater part of it, is in that county.' Hutch. Dig. 655, § 54. This is the rule generally applicable to estates, and we think that good policy requires that it should be applied with strictness to applications like the present.
The effect of the statute upon which the petition is founded is to compel a sheriff to take upon himself the duties and uncertain responsibilities of an administrator. Before such a coercive measure should be taken, it would be but just to require that the necessity of it should be made clearly to appear to the court. It should be shown that there are assets, property, rights, or credits belonging to the deceased within that county, or in some other county of the State. For otherwise, the sheriff might be compelled to incur all the expense incident to the steps required by law to be taken by him, when there might really be no assets, rights, or credits requiring an administration, the consequence of which would be that the expense would fall upon him. For this reason, we think that the act of 1846 contemplates that there shall be shown to be assets, prop
It should .further be shown, that the legal rights of the party making the application, require that the estate should be administered. He must show that he is a creditor, or otherwise legally interested in the estate. For unless this be made to appear, it would be folly to force upon a sheriff the administration of an estate for the benefit of a party who had no right in law against the estate. Therefore, when there has been such a lapse of time since the death of the deceased, as in this case, it was incumbent on the petitioner to show that his claim was a valid debt against the deceased, and not barred by the statute of limitations; for otherwise the court will be justified in presuming that the claim is barred by the statute, and should refuse to grant administration on account of it, when it would, upon the petitioner’s showing, be useless.
Considering the onerous operation of the statute under which this proceeding was taken, we are of opinion, that before such a burden be cast upon a sheriff, it is incumbent on the party making the application, to make it appear to the. court, that there are rights, property, or effects of the deceased, subject to administration; and if he claim to be a creditor, to set forth his claim free from legal objection, and as a valid existing debt against the deceased. No prejudice will accrue to a creditor by this construction, because if he is a legal creditor of the estate, he has the right to take the administration upon himself.
The petition in this case does not come up to these requisites, and we think it was properly disallowed.
The judgment is affirmed.