Jones v. R. L. Clemmer & Son, 54 So. 4

54 So. 4 | Miss. | 1910

Anderson, J.,

delivered the opinion of the court.

This is an action of replevin, begun in a court of a justice of the peace by the appellants, Mrs. A. J. Jones and her children, the sole heirs of Miles Jones, deceased, against the appellees, It. L. Clemmer & Son, for one bale of cotton, in which court there was a judgment for the appellants, from which appellees appealed to the circuit court, where there was a judgment for appellees, from which appellants prosecute an appeal to this court.

The facts necessary to be stated are as follows: One Miles Jones died, leaving as his heirs his widow, Mrs. A. J; Jones, and three married daughters, all adults, Mrs. Sallie Drewry, Mrs. Dora Mathis, and Mrs. Laura Willingham. ITis widow, Mrs. A. J. Jones, claimed that the bale of cotton for which replevin was instituted belonged to the estate of her deceased husband, Miles Jones. By agreement of counsel representing the respective parties, the children of the decedent were made parties plaintiff in the justice’s court, with the mother. When the case reached the circuit court, the appellees moved to dismiss, on the ground that such a suit could not be maintained by the distributees of the decedent; that the administrator alone could institute the suit. Before trial in the circuit court, but subsequent to the trial in the justice of the peace court, Mrs. Jones was appointed administratrix of her deceased husband’s estate, and on the trial in the circuit court made a motion to be substituted as plaintiff as such administratrix, in the place of herself and children as individuals. This motion was •denied by the court, and the motion of appellees to dismiss the suit, and for a judgment in their favor for the •cotton, was sustained. Appellants offered to prove that the decedent owed no debts at the time of his death.

There are two questions involved in this case: First, whether the distributees of a decedent may sue at law to recover the personal estate of such decedent; and, second, if not, whether, after such a suit has been brought, one of the distributees may be appointed administrator of such estate, and by amendment be substituted as plaintiff in the capacity of administrator, in the place of such distributees, and maintain the suit. It is undoubtedly the general rule that a distributee cannot sue, either at law or equity, to recover the personal estate of the decedent; that only the administrator or executor can maintain such a suit. 13 Ency. of PL and Pr., pp. 2 to 5, inclusive. The reason of the rule is that the legal title goes to such legal representative for the purpose of paying debts, legacies, and making distribution, and the interest alone of the distributees is in what remains after payment of the debts. However, in this and some other states there is a well-established exception to the.rule, which is that if there be no valid outstanding debts against the estate, and no administration, or if there has been administration, which has been finally settled, the distributees may sue in chancery to-recover the personal effects of the decedent. Ricks v. Hilliard, 45 Miss. 359; Hill v. Boyland, 40 Miss. 618; Wood v. Ford, 29 Miss. 57; Manly v. Kidd, 33 Miss. 141; Watson v. Byrd, 53 Miss. 480; Conklin v. Railway Co., 81 Miss. 152, 32 South. 920. The reason of the exception to the rule is, as said by the court in Conklin v. Railway Co., supra: ‘ ‘ Chancery powers, remedial and protective, are large, such as.the requirement of bonds to indemnify and to restore property to save harmless such persons, as premature distribution might injure. Law courts cannot do this.” This exception does not extend to courts of law, because there the reason for it fails. Marshall v. King, 24 Miss. 86; Conklin v. Railway Co., supra.

Section 775', Code 1906, provides that “the court shall have full power to allow all amendments to be made in any pleading or proceeding at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial, and may allow all errors and mistakes in the name of any party, or in the form of the action to be corrected,” etc. Construing statutes substantially the same as this, it was held in Montague v. King, 37 Miss. 441, and Tully v. Herrin, 44 Miss. 626, that an amendment by which the holder of the legal title to a chose in action was made nominal plaintiff, instead of the equitable owner, who instituted the suit, was authorized, and in Denton v. Stephens, 32 Miss. 194, that the name of one nominal plaintiff might be substituted for another. These distributees, who began this suit,, were the beneficial owners of the personal estate of the decedent after payment of debts; but, being unable to maintain it for the want of the legal title, the holder of such title should have been substituted by amendment as plaintiff in their stead. Reversed and remanded.