38 Miss. 167 | Miss. | 1859
delivered the opinion of the court.
The appellees filed their petition in the Probate Court of Franklin county, in right of the wife, as an heir at law of Robert French, deceased, against the appellant as administrator, and the other heirs and distributees of said Robert French, deceased, for her distributive share of said estate.
The petition then states all the heirs and distributees of said estate, and their respective places of residence, and claims that the said wife of Samuel C. Davis is entitled to one-se'venth as her share of said estate ; and the said Samuel C. Davis tenders a refunding bond, &c. The petition further states that one of the distributees received an advancement of $500 in the lifetime of intestate; prays that the same may be taken into consideration; that distribution may be made to the said husband and wife; for final settlement; and for process and publication against the administrator, widow, heirs, and distributees.
We state the substance of the original and amended petitions:
The administrator appeared, and filed what is termed an “ annual account,” at May term, 1857, of said court.
At April term of said court, 1857 (intended, we presume, for May term), exceptions were filed by appellees to “ the partial settlement” of said administrator.
Next, there appears in the record, the answer of the administrator to the petition, and to the exceptions to said account. This answer admits most of the statements in the petition, and seeks to avoid the exceptions taken to his account, by stating that the intestate in his last illness, requested that as his estate was small, and barely sufficient to support his wife — an old woman — and his children were grown, his administrator should keep his property together for the maintenance and support of his wife. That this request was known to all the parties, and assented to and acquiesced in by them, until the appellees commenced proceedings for the .sale and distribution of the estate. That most of the expenditures in said account stated, and excepted to by defendants in error, were made in keeping the said property together, as requested by the intestate, and with the consent and agreement of the distributees, that said estate should be so kept together for the use of their old mother. The answer is
To this answer a demurrer was filed, so far as it is made a cross-bill. Citations issued, and publication was ordered, and, finally, the demurrer to the cross-bill was sustained.
The record then recites: “ That it appearing that all the parties in interest, mentioned in the petition of plaintiff as distributees of said estate, have been regularly summoned and notified according to law, and all, except the administrator, having failed to answer, it is ordered, that the allegations vf the petition be taken for confessed against all of said parties, except the administrator.”
The cause was then submitted to the court, upon the petition, answer, pro confesso, and proof, and a decree rendered in favor of the petitioner. From which an appeal is prosecuted to this court, and numerous errors assigned.
1st. It is alleged that the decree was void for want of notice. This is a mistake, as shown by the record.
2d. It is urged that the demurrer to the cross-bill ought not to have been sustained.
"We think there was no error in this, as the cross-bill was wholly unnecessary, on petition for distribution. These petitions are informal applications, addressed to the sound legal discretion of the court, involving the whole course of administration; and it is competent for the administrator, without formality, to show cause, in any intelligible manner, why a decree for distribution should not be made at all; or in what manner, or to what extent, justice to all parties requires it should be made.
It is the duty of the Court of Probates, without regard to the technical rules which regulate proceedings in chancery, to allow to all parties in interest before them, on petitions for distribution, the full benefit of any evidence which may tend to inform the conscience of the court, as to the proper judgment or decree it should render. The statute regulating this proceeding, does not contemplate the formality of bills and cross-bills; it was, therefore, not proper to incumber the record with unnecessary pleadings.
3d. It is insisted next, that it was error to award distribution, absolutely, to the petitioners, without requiring a refunding bond. We do not understand this decree as directing that the distribution
4th. It is assigned for error, that the court charged the administrator with the amount of $500, advanced to Mrs. Spears by her father (the intestate), in his lifetime, by its final decree; and singularly erroneous as this would seem, the record shows it to be true.
5th. It is objected to the decree, that it charges the administrator with the hires of the slaves, when petitioners did not claim hires in their petition; and it is shown that petitioners knew he was working the slaves, and did not object to it.
The question is here presented, whether the administrator should be charged with the hire of the negroes, and the rent of the land, &c.; or whether he is chargeable alone with net proceeds of the plantation ?
It is certainly true, that it is competent for adult heirs at law, to consent, or agree, that the property of the intestate should be kept together for the support of their mother, or for any lawful purpose, and such consent will justify the administrator, in the absence of creditors, or so far as the distributees are concerned, in conforming his action to their wishes on this subject.
In the case of Billingslea and Wife v. Young’s Executor, it was said by this court, “that to justify an administrator or executor in keeping the property together, and working it on the plantation of decedent, he must bring himself within the provisions of the statute on that subject, or the terms of the will under which he acts, or show the consent, either express or implied, of the parties interested; otherwise he will be liable for the profits, or for the rent of the land and hire of the slaves, at the election of the distribu-tees. And that a distributee entitled to an election,' as to whether he will take the proceeds of the crops raised by the executor, or the rent of the land and hire of the slaves, ought to make the election in his petition for distribution.”
In the case of Crowder v. Shackleford, 35 Miss. R. 354, in com
“ His claim” depending on his “ election,” whether he will take the proceeds of the crops, or the rent of the land and hire of the negroes, he ought to make that election, and “ set it forth” as the claim he makes, in his petition for distribution; else it must be presumed that he has assented to the irregularity, and adopted the action of the administrator in this respect. The right of these parties to make this election, and to waive their claim against the administrator for rent and hire, it is not the province of the court to dispute. But when made, it is irrevocable by them, and they are estopped by the record from denying such election and waiver. This petition is wholly silent on this point.
It follows that the decree in this respect was erroneous; and this view of the case is as well applicable to the 7th, 9th, and 10th assignments of error, as to the 5th.
6th. This assignment of error relates to the liability of the administrator to pay interest on the amount of the sale of the estate.
There is no evidence in the record upon which such a charge against the administrator could be properly based. There is no evidence that he has so used the estate, as to render him chargeable with interest.
The only remaining assignment is, that the decree directs the administrator to deliver to petitioner, Samuel 0. Davis, his own note, belonging to the estate, and. in. suit against him, in part payment of the amount due his wife, without any provision for the payment of cost, which is thereby cast on the estate.
This was certainly wrong.
Let the decree be reversed, and cause remanded for further proceedings, in accordance with this opinion.