Gray v. Harris

43 Miss. 421 | Miss. | 1871

Simrall, J.:

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 distribTitees of the estate, and the administrator de bonis non. These exceptions were continued from term to term, as it would seem, on the application of the administrator, until the July term, 1867, when a decree was made, disallowing sundry credits claimed by the administrator, and finding a balance against him of $6,516 97.

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 on the hearing of the exceptions and restating the account, was the account itself and the accompanying papers. Whether all of any of the objections to the credits of the administrator ought to have been-sustained, depends on the value of the accompanying vouchers in support of the credits. If the voucher, on its face, is prima facie, a debt or liability .of the intestate, or such as was properly chargeable on the estate, and the holder and claimant has made the appropriate affidavit, and the claim has been allowed, then the administrator will be protected in its payment, and allowed credit for it. The onus is on the objector to overthrow this prima facie case in favor of the administrator. Although the claim may be sworn to and allowed, yet, if on its face, it does not import a debt or liability on the estate, the administrator would not be justified in its payment, and would do so at his peril. The probate court can audit and restate the account itself. Satterwhite v. Littlefield 13 S. & M., 305, or it may be referred to the clerk or other fit person. Here there is no order of reference, and we must suppose that the court itself examined and restated the account. The exceptions so far as sustained in whole or in part, may be gathered from the decree and restated account, applying the above rules as tests of the exceptions :

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.

4th. Nineteenth credit (voucher No. 19). If the services to A. S. Baugh were payable in Confederate money the probate court ought to have applied the test of value at the date of the rendition of the service rather than when the debt was to be paid. This is the rule adopted by the supreme court of the United States, and which, we think is more agreeable to equity and justice. The Confederate money ought to have been reduced to United States currency, and not to the coin standard. As to this item there was error.

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 principies herein stated. Either party will be allowed to introduce testimony in support or derogation of the exceptions and account.