54 So. 4 | Miss. | 1910
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 par
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
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.