Dement v. Heth

45 Miss. 388 | Miss. | 1871

Peyton, C. J.:

It appears that D. H. Dement, the acting executor of the last will and testament of William W. Hendricks, deceased, was removed from the administration, and John T. Heth appointed administrator de bonis non, with the will annexed, of the estate of the said decedent, by the probate court of Yazoo county.

That said Dement, upon the settlement of his final account with the said probate court, was found to be indebted to the estate in the sum of $6,053 '92, which the court decreed to be paid to the said Heth, and from this decree the said Dement brings the cause to this court for revision.

The main questions presented by this record for our consideration are the two following: 1st. Are the balances on the annual settlements of an executor or administrator open to objection on a settlement of the .final account with the probate court; 2d. Has the administrator de bonis non a right to the money found due the estate upon a final settlement of the account of the first administrator.

Annual or partial settlements of administrators’ accounts are never made upon notice to the parties, creditors and distributees interested in the decedent’s estate; the order, therefore, entered in a proceeding of this character is neither final nor conclusive in regard to them; it amounts only to prima facie evidence of the' correctness of' the account. Hence, upon a final settlement of an administration account, the creditors and distributees have a right to object to any previous settlement; and upon exceptions filed, pointing out the errors, to have the whole account corrected, according to the truth and evidence. Effinger v. Richards, 35 Miss. 540. And this in strict accordance with the Rev. Code, 431, art. 33, which provides that, in proceedings for a final settlement, the court may allow any party interested to surcharge and falsify any annual or partial settlement of any executor, administrator or guardian.

With regard to the second question, as to the powers, rights and duties of an administrator de bonis non, it seems to be well settled, at least in this state, that his commission extends only to the administration of the effects left unadministered. Kelsy v. Smith, 1 How. 68; Stublefield v. McCraven, 5 Smedes & Marsh. 130, and Byrd v. Holloway, ib. 323 ; and in the last-named case, it was held, that where an administrator has made a final settlement of his account, and thereby shown an indebtedness upon his part to the estate, the creditors or distributees may sue for this balance, but the administrator de bonis non cannot.

But it is insisted by counsel that this doctrine does not apply to a case of insolvency, for the reason that the pro rata shares of the creditors cannot be ascertained until the whole estate has been administered, and that, to enable the court to do this, it is necessary that the entire fund subject to distribution among the creditors should be in the hands of the last administrator. This reasoning would have force if it were true that no distribution could be made among the creditors until the estate was fully administered. But the law, after the claims are all registered and allowed or established, contemplates a distribution by the administrator of all money in his hands, among the respective creditors, in proportion to their respective demands, and that he shall thereafter continue to make such distribution as money may come into his hands from the estate, until the whole is distributed. Rev. Code, 450, art. 102.

The administrator de bonis non gives bond only in an amount sufficient to secure the faithful administration of the unadministered estate, and as far as the executor had progressed in the administration, the estate was already administered, and was therefore not covered by the bond of his successor in the administration. It will thus be seen that, if the funds in the hands of the executor were paid over to the administrator de bonis non, as required by the decree of the court below, the creditors would be without any security for the. faithful distribution of the money, which, might be reduced in amount by unnecessary additional expenses and commissions.

To protect the interests of the creditors by a speedy distribution of the money in the hands of the executor, we have arrived at the conclusion that the court below should have ascertained the pro rata share of each creditor, of the sum of money found due the estate upon the final settlement of the executor, and, when ascertained, should have ordered him to distribute all money in his hands among the -respective creditors, in proportion to their respective demands, in accordance with the provisions of the statute above referred to.

The decree of the court below is reversed, and cause remanded for further proceedings in accordance -with this opinion.