Grant v. Spann

34 Miss. 294 | Miss. | 1857

SMITH, C. J.,

delivered the opinion of the court.

By his last will and testament, Lewis Brewer devised and bequeathed his whole estate in trust to^yre J. Spann. The will was produced and regularly admitted to probate, in June, 1855, by the Court of Probates for Noxubee county, No executor was named in the will; and at the succeeding term of the court, letters testamentary were granted to the said Spann, who qualified and proceeded to act as the executor. The widow of the testator filed a renunciation of the bequests in her favor contained in the will, and elected to take her statutory portion of his'estate. She subsequently intermarried with John M. Grant, who, jointly with her, in December, 1856, filed their petition praying for a revocation of the letters testamentary granted to Spann, and that letters of administration with the will annexed be granted to them. Their prayer was refused, and the petition dismissed. Whereupon they sued out this writ of error.

It is obvious, from this statement, that the main question to be considered, is a question of jurisdiction. If, in granting letters testamentary, the court acted without authority, its action was null and void. Upon this supposition, the estate was unrepresented. It was hence incumbent upon the court to appoint some suitable person administrator with the will annexed, and the petitioners may have been proper parties to be selected for that purpose.

On the other hand, if it be assumed that the court possessed jurisdiction over the subject, it is clear that no collateral inquiry could be instituted, in regard to any alleged error which may have intervened, unless such error rendered the action of the court absolutely void. If, therefore, it were conceded that the court erred in reference to a subject within its jurisdiction, it is equally clear that this was not the proper method of proceeding for the correction of it.

An executor is the person to whom the execution of a last will and testament is, by the testator, confided. He is placed in the stead of the testator. He may enter to the goods and chattels of the testator ; he may dispose of them in the payment of the debts, and in the performance of the testator’s will, and may sue for and recover the debts due to him. The executor-derives his office from the testamentary appointment alone, and his authority is grounde'd on the will. And hence he may perform many acts in his character of executor before probate of the will. Toller on Ex. 34, 46; 1 Williams on Ex. 124, 134, 172.

An administrator in England is merely the officer of the Ordinary prescribed to him by act of Parliament, in whom no trust was reposed by the deceased. In this State, the administrator derives his office and title by the appointment of the Court of Probates, and his authority is prescribed by the statute.

There are marked and material differences between the office and authority of an executor, and the office and authority of an administrator. And the facts upon which the authority of the Court of Probates attaches, in the one case, to grant letters testamentary, and in the other to appoint an administrator, are equally distinct. In the latter case, except in certain cases, and for limited purposes, the authority of the court exists only in cases of intestacy. Where there is no actual or presumed intestacy, no jurisdiction whatever exists. In the former case, the probate of the will is the jurisdictional fact. And where there is no will and no probate, a grant of letters testamentary would be simply void.

Here there was no intestacy. There was a will and a probate. This vested full jurisdiction over the subject. Hence, the court had authority to grant administration with the will annexed, or letters testamentary to the person expressly nominated by the testator, or who was the executor according to the tenor of the will. No one was expressly named as the executor, and counsel insist that, Spann, to whom letters testamentary were granted, was not, by implication, appointed executor.

The will gave the testator’s whole estate, real and personal, to Spann, in trust for the benefit of the testator’s widow and children. The property was not to be divided until the debts were paid. After the debts were paid, the widow was to have one-third of the whole estate for the term of her natural life, not to be chargeable by her acts, or by those of any future husband she might have. And upon her death, the property given to her was to go to the testator’s two children, to whom the residue of his estate was devised and bequeathed.

The appointment of an executor may be either express or constructive. And “ although no executor be expressly nominated in the will by the word executor, yet if, by any word or circumlocution, the testator recommend or commit to one or more the charge and office, or other rights which appertain to an executor,” it is tantamount to an express appointment of an executor. 1 Williams on Ex. 134.

In cases in which there was no express nomination of an executor by the testator, authority given to a trustee, legatee, or other person named in the will, to collect and pay off the debts dpe to and by the testator, would generally be considered decisive of the appointment, by construction, of such person as the executor. Fry, Hogg & Grant v. Leslie, 3 Phillim. 116.

But it seems not to be essential to constitute an executor according to the tenor of the will, that express authority should be given to him to collect and pay the debts. If the duty imposed and the authority given necessarily imply the right to receive the testator’s goods and collect his debts, it will be sufficient. Thus, in a case where the will made no mention of the testator’s debts, but contained only devises and bequests of real and personal legacies, to be paid within a given time, and concluded, without any residuary bequest or express appointment of an executor, in these words, “ I appoint A. B., C. D., and E. E. to receive and pay the contents above mentioned,” it was held, that these persons were executors according to the tenor; “ for they could not receive and pay the legacies without collecting in the effects; and no one can assent to a legacy but he that has the management of the estate, because legacies cannot be paid till after the debts, and he only who has the management of the estate knows whether the assets are sufficient.” Pickering v. Towers, Ambler R. 363. And so it 'Was held that a person named in the will as “ universal heir,” had a right to go into the ecclesiastical court for a probate. Androvin v. Poilblanc, 3 Atk. 301.

Spann was made universal legatee under the will; and we apprehend, the fact that he took only as trustee for the widow and children, can have no weight in considering the question under consideration. His right to receive and take possession of the testator’s estate was postponed until after the payment of the debts. He was entitled to immediate possession, and to hold the property until the debts were paid, and was then bound to distribute according to the directions of the will. This would seem to negative the idea that he was to receive the property through the hands of an administrator, and to imply the right to collect and pay the debts. If we are correct in this construction, the case before us is covered by the principle applied in the case of Pickering v. Towers, quoted above; and is clearly distinguishable from the case of Baddieatt v. Dalyue, 2 Cas. Tem. sec. 294, cited and relied on by counsel for the plaintiff in error.

At most, the construction upon which the Court of Probates held that Spann was executor according to the tenor of the will, was one of doubtful propriety. And if it were admitted to be more doubtful, or even palpably erroneous, the case, for the plaintiff in error, would not be strengthened.

Upon the production and probate of the will, the court acquired full jurisdiction of the will; and, as no executor was expressly appointed by the testator, it had the exclusive right, in the first instance, to determine whether or not there was a .constructive appointment. This, of necessity, involved the construction of the will; and, as the court had undoubted jurisdiction for this purpose, it is wholly immaterial, in this proceeding, whether its determination of the question was correct or incorrect.

Let the decree be affirmed.