Jones v. Jones

49 So. 115 | Miss. | 1909

Mayes, J.,

delivered the opinion of the court.

Benjamin L. Jones died on the 13th day of August, 1908, leaving a last will and testament wherein David S. Jones was made executor without bond. The deceased having a fixed place of residence in Leflore county, the will was in due course admitted to probate in the chancery court of. that county. The will was probated August 19, 1908. On October 24th following, the executor filed a petition in the chancery court of Leflorecounty, making Mary V. Jones, widow of Benjamin L. Jones, deceased, a party defendant. The will contained only the following reference to the wife; that is, it provided that “after the payment of all my just debts, as my wife has a'separate estate very nearly, if not entirely equal to mine, I devise all of my estate, real and personal, etc., to my brothers and sisters, and their descendents, in equal parts,” etc. In short, it made no provision for her because of the reason stated therein. The-petition was filed by the executor October 24, 1908, and is a proceeding under Code of 1906, § 5089, and alleges that the widow renounced the will October 22, 1908, and thereupon became entitled to such share of her deceased husband’s estate, real, and personal, as she would have been entitled to if her husband had died intestate. It is further alleged that there wTere no-children or descendants of. children, and that the widow owns a large estate of real and personal property greatly in excess of one-fifth of the estate left by the decedent. It is further charged that the widow, by virtue of the renunciation of the will, is entitled to receive from her deceased husband’s estate enough of same to make the value of her estate equal to his at the time of his death, and in order to ascertain this amount and make up the deficiency it is necessary that the court appoint three commissioners to ascertain the-value of both estates and report their valuation to the court as the law provides. It is further alleged that this proceeding is necessary in order to enable the executor to proceed to execute the will. To this bill a demurrer was interposed by the defendant, setting up, first, that the executor has no such interest as would entitle him to bring this suit; second, that those named as devisees in the will are not made parties to the proceeding; and,, third, because the petition is prematurely filed. This demurrer was overruled by the chancellor, and an appeal is prose" cuted from the decree to settle the principle of the cause.

It will be noted, first, that the death of the testator occurred: August 13, 1908. The will was probated and allowed on tbe 19th. of August, and this petition was filed on the 24th day of October, and before the expiration of the one year allowed for filing and probating claims. Under Code of 1906, § 2137, any proceeding which has for its object any distribution of the estate before the expiration of one year from the grant of letters testamentary is not permissible, and this petition must be dismissed as being premature, it having,been filed before it can reasonably be determined what part of the estate will be left for distribution after the payment of creditors, but since the appeal is for the purpose of settling the principle of the cause, we will decide all the questions raised by the demurrer.

It is argued that the executor has no such interest in the estate as would warrant his instituting this proceeding. We do not think this position is sound. Any person interested in the estate, or connected with its administration under Code 1906, § 5089, may institue -proceedings to have commissioners appointed as provided for in the section for the purpose of ascertaining the value of the estate of the wife, and to determine what her lawful portion of her husband’s estate should be. But, while this is true, by whomsoever the proceedings may be instituted, it is necessary to make all interested persons parties to the proceeding.

Decree reversed and petition dismissed.