Frisby v. Harrisson

| Miss. | Dec 15, 1855

HaNDY, J.,

delivered the opinion of the court.

This was a petition filed by the appellant in the Probate Court, against the appellee, to compel him to render a final account, as administrator of Sarah R. Woodward, deceased.

The appellant claims under her mother, Martha Jane Prisby, who was a nieee of Sarah R. Woodward, and who died in the year 1853, and alleges, that although the appellee pretended to make a final settlement of his account in May, 1848;, that settlement was void, because Martha Jane Prisby, who was one of the distributees, was then a minor, and the wife of Thomas H. Prisby, and that no legal notice was given of that settlement, nor was any citation issued in relation to it.

The answer shows that when the appellee returned his final account to the Probate Court, in May, 1848, the father and mother of the appellant voluntarily came into court and entered their appearance in the matter of the settlement, and- produced the record of the proceeding, showing that all the parties interested waived formal notice; and that thereupon the account was examined and allowed, and that the administrator thereupon ceased to have any connection with the estate.

It is now insisted in behalf of the appellant, first, that the final settlement is void for want of notice to Thomas H. Frisby, and Martha his wife, and second, because Martha Jane Frisby, being thefi a minor, no guardian ad litem was appointed for her.

Upon the first point it is well settled, that the voluntary appearance of a party to a judicial proceeding is sufficient, and that it dispenses with notice, .because he does that without notice, which it is the only object of notice to compel him to do. It is also clear that the statement in the record of the proceedings upon the final settlement, that the parties appeared and waived notice, is conclusive evidence of that fact, and not to be controverted, except upon writ of error duly prosecuted. Hardy v. Gholson, 26 Miss. 72.

Upon the second point, we do not think that it was necessary to appoint a guardian ad litem, to Mrs. Frisby, under the circumstances of the case.

It was a proceeding by which the account of the appellee in administering the'estate, was to, be settled; and the parties interested therein as distributees were required to have notice of it, only for the purpose of giving them an opportunity of examining the account, and seeing that it was just and proper. No title to property belonging to them was to be changed, nor were they required to make any answer; and indeed there appears to be no greater reason for regarding them as respondents, than as plaintiffs or actors in the proceeding. All that is required by reason of the statute prescribing notice is, that the interest of the parties concerned shall be protected by those competent in law to protect them, without regard to the technical rules applicable to formal Suits. The husband of the minor wife would certainly appear to be the most appropriate person to protect her interest in the estate, because in doing so, be protects bis own interest, wbicb is intimately connected, if not identical witb it.

By our statute, if tbe property belonging to ber bad been in tbe bands of a guardian, that trust would have ceased upon tbe marriage, and tbe husband would have become entitled to. receive it from tbe guardian. (Hutcb. Code, 506, § 135.) And this statute clearly recognizes tbe right of the husband to act foy bis infant wife in all matters in which personal estate is to be'received in right of tbe wife. For there is no greater reason why tbe husband should be incompetent to represent bis wife’s interest in settling witb an administator, than in settling witb-a guardian, wbicb is expressly authorized by tbe statute ; and in either case, if be would be competent to make a settlement out of court, in relation to ber rights or interest in an estate, for tbe same reason be would be competent to represent ber interest in a mere matter of settlement in court; and bis power to do tbe former act will scarcely be denied.

But in addition to this, under tbe provisions of this act tbe husband is clothed witb tbe same power over tbe wife’s property and rights, that tbe guardian would have; and by tbe act of 1846, (Hutcb. Code, 728, § 4,) tbe guardian bad tbe power to represent ber in any proceeding in tbe Probate Court, affecting ber rights or interest.

Whether, therefore, we consider tbe reason and expediency of tbe matter, or tbe rule to be deduced from tbe statute first above cited, we cannot doubt but that tbe husband was invested with full legal capacity to represent tbe interest of bis wife, in any such proceeding as that under consideration.

Tbe decree is therefore affirmed.

A petition for re-argument was filed, but overruled.