Gasque v. Moody

20 Miss. 153 | Miss. | 1849

Mr. Justice ThacheR

delivered the opinion of the court.

At the June term, 1846, of the probate court of Greene county, letters of administration were granted to Samuel Gasque, upon the estate of Ebenezer Tart, who deceased in the year 1834. The .grant of letters was made to him upon the score of his being a creditor of the estate, and likewise interested therein as a distributee. Subsequently, a petition was filed by Isham Moody and Martin Moody to procure the revocation of these letters, and alleging that the estate had previously been administered upon by the widow of the intestate in 1834. These petitioners charged that they had been purchasers of slaves under this administration. The evidence exhibited that the intestate was the illegitimate child of one Martha Crawford, and that at various periods of his life, he had borne the name of his mother, Crawford, that of his reputed father, Tart, and that of the person with whom his mother intermarried after his birth, Gasque.

It is certainly competent for a probate court to revoke a grant of letters of administration, when it shall be sufficiently advised that they have been improperly granted. After a grant of letters and the settlement of an estate, another grant of letters in the same estate, unless it be a grant of letters de bonis non in cases provided for by law, is a nullity and void. Such a grant may and should be revoked by the court, and it may be done on the application of any one interested in the estate in any wise, upon the suggestion of an amicus curios, or at the court’s own instance, provided the case is sufficiently established.

But this action of the court cannot be had without due notice to the person to whom letters have been improperly granted. In the case before us, although notice was directed to be given to Samuel Gasque, the record shows that it was not served upon him, but upon his counsel, which is insufficient. For this reason, the decree must be reversed, and the cause be returned to the probate court of Greene county, to be recommenced by due legal service upon Samuel Gasque.

Decree reversed, and cause remanded for further proceedings.