43 Miss. 421 | Miss. | 1871
George M. Gray, administrator of Eichard Gray, deceased,-, filed his final settlement account in the probate court of Eankin county. Sundry exceptions were taken by the distrib
Whether the administrator had been displaced from his trust by the court, or whether he had voluntarily surrendered his office, the record is silent. Nor is the necessity of an administrator de bonis non shown. The duties of the latter would be limited to such assets as were left unadministered by his predecessor. It may, however, be presumed that a proper reason for his appointment was presented to the probate court.
It is complained in this court by Gray, the administrator, that the probate court took up and considered the exceptions to his account, restated it, and ascertained and determined the balance against him, in his absence, and without giving him notice. The proceeding of final settlement is in nature of a suit between the administrator and the parties interested in the estate. He must make the distributees parties by notice to them. It would follow then that when the parties are thus before the court, amenable to its jurisdiction, each must observe the progress of the suit at his peril. Certainly the administrator is presumptively in court from term to term, and cognizant of everything done. He cannot say that exceptions to his account were heard and decided without his notice or knowledge. ’ If he desired further time to make proof of his credits, which were assailed by the exceptions, he should have craved it of the court, and have put on the record the merits of such an application.
The probate court may, in its discretion, order plenary proceedings; in practice the parties sometimes make them so without formal direction of the court. In such cases they assimilate very much to chancery pleadings and practice. We are inclined to the opinion, from a careful perusal of this record, that the only evidence which the court had before it
1st. Credit (voucher) No. 2. It does not appear whether this payment was for the benefit of the estate or in exoneration of it. It would require further explanation by testimony.
2d. Fourth credit (voucher No. 4) is on its face the written promise of the intestate, and the administrator is entitled to a credit for it.
3d. It may be observed that the several successive receipts down to and including No. 12, are most probably payments or credits made the distributees for account of the distributable balance; and were such the fact, would be in exoneration pro tanto, of what may be severally due each on the distributive balance, but are out of place as stated and claimed in the account.
5th. The same remarks are applicable to credit and voucher 2.
6th. The administrator was not bound to pay claim (voucher) 20 ; it was not verified by oath, nor allowed, unless it be shown by other testimony that it was just, it is not a proper credit.
7th. The administrator is entitled to the credit, expressed in receipt (voucher) 23. The receipt shows a payment of a debt against intestate, and it devolved on the objectors to show a different state of fact (if it really, existed).
8th. The administrator for the same reason, ought to have been credited with voucher 24.
We think the court erred in directing the balance found due from the administrator to the estate, to be paid over to the administrator de bonis non ; that portion of the decree is in these words : “ George H. Gray, former administrator, etc., is hereby ordered to pay said sum of $5,516 97 to Thomas Harris, administrator de bonis non of said estate for general distribution.” If the fund was for distribution, why should the court, not then have ordered its payment to the several distributees, rather than remit it to the hands of a successor, to be burdened with costs, commissions and delay, before reaching those for whom it was destined. If creditors had no claims upon it, as is conceded by the decree, it is difficult to see for what good purpose it should be paid to Harris, administrator de bonis non.
The decree is reversed, the cause remanded, for the account of the administrator to be settled, according to the princi