44 Miss. 124 | Miss. | 1870
This cause is brought to this court to review the decision of the probate court of Leake county, on summary exceptions taken to the final account of John F. Donald, admistra-trator of the estate of John Adams, deceased.
The first assignment of error challenges the propriety of the debit made against the administrator for the hire of the slave John, from the grant of the letters in January, 1860, to October of the same year, when the slave was sold under probate decree. The testimony shows that John was put in the service of his step-son, John F. Donald, by the intestate, many years before his death, in part to make some compensation for the support of the intestate and his wife, both of whom were quite old. The proof is ample and abundant, that the attention and care of Donald and wife to this aged and infirm couple, for very many years, were kind and unremitting, and that no adequate pecuniary compensation was, or could be made by the intestate therefor. But as the proof shows that the slave John was on the premises of the administrator at the death of the deceased, and continued there in service, after the death of decedent until sold, strict law would require that the administrator should make reasonable compensation for the service. There was no error therefore in so changing the administration.
This case has been heretofore thrice in this court, on exceptions to this account, and it is now claimed, that inasmuch as this credit has not been canvassed and condemned, it has become no adjudication in favor of the administrator. In the opinion pronounced at the April term, 1866, 40 Miss., 232, explanatory of a misconception of the former judgment, it js said, “under this direction, the court below should have examined .the accounts anew, hearing all proper proof required by the statute to establish their validity and fairness, on the contrary, and deciding their correctness.” The former opinions do not discuss this credit.
The objectors to this monument to mark the spot where repose the mortal remains of the father and his wife, are his daughters and sons, children by a former marriage, children who are shown by the testimony, not merely tó have been wanting in filial piety, but some of them to have been violent and cruel to their aged and infirm parent. The effect of disallowing the credit would be to swell a little the distributive balance of each one of them. The objection might come with a better grace from creditors, if, because of it, they would fall short of full payment of their demands.
It is the duty of the administrator or executor to bury the deceased in' a manner suitable to his degree in life, and the estate he leaves behind him. 2 Blk. Com., 508. Lord Coke" said these funeral expenses are to be allowed of the goods of the deceased before any debt or duty whatsoever. The allowance may be more liberal as against legatees and dis-tributees, than creditors as against the latter, the expense must be limited to what is really necessary. 2 Williams Ex’rs, 701. Lord Hardwicke, in Story v. Panter, 3 Atk., 119, said, that at law, no more shall be allowed, if a person dies insolvent, than is necessary. But in that case, he overruled exceptions to an expenditure of sixty pounds.
In Hancock v. Poamere, 1 Barn. & Adol., 260, the rule was
The testimony shows that John Adams, the deceased, was anxious that a tombstone should be erected, to be paid for out of his effects, and, it would seem, exacted a promise from his step-son, Jno. F. McDonald, to do so>.
One of the witnesses testifies that she heard the intestate say that he feared he would not have enough left to pay for tombstones, but Jno. F. Donald had said he would erect them, and he knew he would do it.
There is no doubt that Donald put up the monument out of deference to the wishes of the deceased, and could noh anticipate that his own children would, after the expense had been incurred, disapprove it, and attempt to throw the burden on him personally. On a direct consideration of this outlay, the probate judge approved it, and allowed it as a proper outlay and credit to the administrator.
Respect for tbe memory of the dead, in whatever overt form of expression, is a noble sentiment. It serves to link the past generation with the living, and points to the hereafter.
Funeral expenses comprehend more than the shroud, the coffin, and the grave. We know that in towns and cities it includes carriage hire to convey the family and friends to the place of interment. We think too, that where no injustice is done to creditors, a compliance with the last wishes of the dying, as to the style and character of the funeral, if not extravagant or unreasonable, violates bo principle of the
3. The last assignment of errors is in disallowing voucher No. 9, an account for services of Mrs. Donald in attending on the deceased the three last years of his life.
The testimony represents the deceased a large -part of this time in a most helpless condition, requiring assiduous and constant attention. Mrs. Donald performed the offices of a friend and nurse, with a self-denial and devotion honorable to herself and her sex; nor can there be a doubt that five hundred dollars, the charge made, would be but moderate compensation for these services.
In the MS. opinion of the court, at June term, 1867, speaking in reference to this claim, it is said: “ We do not think the law will imply a promise to pay. There should be some proof that the services were rendered and received in contemplation of compensation being made. ”
In the opinion delivered at the October term, 1861, the preferment of. the account is reprobated with some degree of sharpness.
In the report of the case, in 40 Miss., decided April term 1866, the case was sent back, because the depositions of Mrs. Freelan and Mrs. Atkinson, in reference to this voucher, had been suppressed; and it is again in effect held, that the care, attention and service rendered by Mrs. Donald, must have been at the request of Mr. Adams in his lifetime, and with the express understanding that she should be paid for them.
We find nothing in the testimony reported in the record which shows any express understanding or agreement be
There was no error, therefore, in rejecting this claim of Mrs. Donald.
As this cause has already been several times in this court, and it were time that the controversy were ended, we reverse the decree, and remand the cause, with directions to allow to the administrator credit for voucher No. 12, amount $233 10, and to proceed, without other testimony, to final decree, accordingly.