Mayo v. Clancy

57 Miss. 674 | Miss. | 1880

George, C. J.,

delivered the opinion of the court.

The appellant having first obtained leave of the Chancellor, filed his bill to review the final settlement of the administratrix of his father’s estate. The account was audited and allowed in February, 1872. At that time the appellant was a minor. He arrived at majority on March 11, 1876, and in January, 1878, less than two years'after he became sui juris, he filed this bill. A demurrer was sustained to the bill, and he appealed. Considered as a bill of review, it is not maintainable, because it does not point out errors apparent on the face of the decree predicated on newly discovered evidence.

The errors mainly relied on relate to certain credits allowed the administratrix for lumber and repairs on land, and to the division of the balance due on the final account equally between the appellant, who was the heir, and the appellee, who was the widow of the intestate. This balance is composed in part of various items of rent of land collected by the adminis-tratrix, and as to these the appellant claims that he was entitled to two-thirds and the administratrix to only one-third. This would be true if the land was a freehold estate; but it does not appear but that it was leasehold, and hence there is no error apparent on the face of the decree or final account. For the same reason, it is not shown that the repairs on the land were beyond the power of the administratrix. It is true that, taking the facts stated in the bill as to the nature of the title to the land as true, the error would be shown. But, in determining whether there is error on the face of the account, we cannot look beyond the decree and the account. The new matter alleged in the bill cannot be considered.

If the bill is considered as an original bill to set aside the decree allowing the final account, it cannot be maintained for two reasons: First, it was not brought during the minority of the appellant, or within the one year allowed by Code 1871, § 1265, in which he could apply for a rehearing; second, being brought after the year, there is no allegation of fraud or collusion in obtaining the decree. Within the one year, he would have been allowed to attack the decree by merely alleging error in it, pointing it out, and offering to show it by evidence aliunde. After that time, he stood in exactly the same relation to. the decree as if he had been an adult, except that in making out a charge of fraud and imposition in obtaining the decree, some consideration would be given to the helplessness of the infant' arising from his nonage and want of experience. Decree affirmed.