Davis v. Blumenberg

| Miss. | Mar 15, 1914

Per Curiam.

Most of the items of the accounts of the administrator and of the administratrix de bonis non were objected to by appellants, and a commissioner was appointed to restate the accounts, and, upon the coming in of his report, it appeared that most of the items of the account, as restated by him, were again objected to by appellants, and that objections had also been interposed by the administratrix to the disallowance by the commissioner of certain items of the accounts. All of these exceptions are presented to us for review.

The only way this court can intelligently pass upon matters of this character is for counsel representing the party presenting an exception to us for review to set forth in his brief each exception upon which the opinion of this court is desired, followed by a brief statement of the reasons why the exception should be sustained or overruled, and by a citation to the pages of the record containing the evidence relating to the item excepted to. It is, of course, unnecessary to do this, where the exceptions present no question of fact but simply one of law. This plan has not been pursued with reference to some of the exceptions presented to us by this record, and wé will therefore not attempt to deal with those not so presented, and must be understood as expressing an opinion only on those matters herein specifically referred to. We find no error in the reduction of the first administrator’s fees from seven to four per cent.

The seventy-three dollars and thirty-five cents premium paid by the administratrix de bonis non on the special bond executed by her in order to collect the-money for which the land had been sold by her predecessor by order of the court below should have been allowed. It was necessary for her to make this bond,, ánd in addition it had been approved by the court.

Exception to the item of four hundred and sixty-six dollars and thirteen cents paid by the administratrix for' the taxes on the land for the year 1909 should have been overruled, and she should have been allowed credit therefor, because, if for no other reason, the taxes on the land constituted a personal debt against the owners thereof,, as well as a lien on the land, and appellants therefore-have no cause of complaint because of the payment by the administratrix thereof.

A number of mules, the property of the decedent, came into the hands of the administrator and were not accounted for by him. Evidence was introduced showing that these mules were worth more than the value placed on them by the appraisers, and the court below very properly charged him with the actual value, as shown by the evidence, and not that fixed by the appraisers.

On the showing made, the allowance made the admin-istratrix for attorney’s fees seems to be excessive and should be reduced to an amount commensurate with the-services shown to have been rendered.

No error was committed in the allowance of the item of four hundred and fifty dollars to J. S. Blumenberg for board of the decedent’s mother prior to his death. It seems clear from the evidence that this lady was staying with Blumenberg under an agreement or understanding with the decedent that decedent would pay her board. At all events, we cannot say that the chancellor was in error in so holding.

Several of the items for which the administrator was allowed credit consisted of payments made of indebtedness due by the firm of Blumenberg & Jones. These credits were properly allowed, if the deceased was in fact a member of this firm, and if its assets, upon his death, were turned over to his administrator and. the payments made out of the proceeds thereof, as is stated in the brief of counsel for the administrator. We have not attempted to verify these facts, for the reason that the decree of the. court below must be reversed on other .grounds.

We find no error in the allowance of the item of one thousand nine hundred and thirty-one dollars . and seventy-four cents paid by the administratrix on the judgment in favor of the Delta Bank against J. L. Haley .and the former administrator.

Several of the accounts probated were in favor of partnerships, and it does not appear, from the affidavit thereto, that the person making it (the affidavit) was a ■member of the firm. This is immaterial, provided,such person in fact was a member of the firm.

Section 2106 of the Code requires the clerk, in event- he shall approve a claim sought to be probated against the estate of a decedent, to indorse upon it the following words:

“Probated and allowed for $ — .—, and registered this -day of-, A. D.---.”

' The certificate of the clerk to the claims probated against this estate was not in the statutory language, but was as follows:

“State of Mississippi, Leflore County, Chancery Court.

“I have this day examined the annexed account, and hereby allow the same, for the sum of thirteen & 95/100 dollars, with interest from maturity. Given under my "hand and seal of. said court this 19th day of September, 1905. “C. W. Crockett, Clerk.”

The word “probate,” in this connection, simply means that the account has, in the judgment of the clerk, been proven in the manner required by law, and the fact that he allowed and registered it evidences the fact that he decided that it had been so proven, so that his omission to so certify is immaterial. We do not mean to depart from the strict construction heretofore given this statute, but to hold the certificate here complained of invalid would be to sacrifice substance to form, in a case wherein it is manifest that the statute had in all respects been complied with by the persons presenting the claims to be probated, and that the clerk, before allowing them, had so determined.

No error was committed in allowing the administrator credit for the taxes paid on lands owned by decedent at the time of his death, called in question by exceptions numbered 8, 9, and 10'. The administrator had the right to pay these taxes in order to protect himself and the creditors of the decedent in their right to subject the land to the payment of the decedent’s debts; and in addition the payment of these taxes inured equally to the benefit of all of the heirs of decedent, and .therefore none of them are in position to complain.

No error was committed in overruling the exceptions based upon the disposition made by the administrator of the Jerrv Miller note.

Beversed and remanded; costs here to be equally divided.

Reversed and remanded..