71 Miss. 330 | Miss. | 1893
delivered the opinion of the court.
We fail to discover the fraud supposed by counsel for appellant to have been practiced by A. H. Ball, administrator, on complainants, in inducing them not to probate their claims until barred by §§ 2026, 2028, code of 1880. In a single instance only, in all the letters filed in the record, is there any reference to the propriety or necessity of probating any claim against any person. In the letter of September 1, 1890, from A. H. Ball to James Ohlen & Sons that solitary reference is found, and in these words: “ It will not be necessary for you to probate any account against John T. Ball & Co., as I, as the surviving partner, have a right to settle any thing against the firm.” It is manifest that this was an expression of opinion by a surviving partner as to his power
The prayer of the petitioners for a sale of the lands belonging to the estate of Jno. T. Ball, deceased, was properly denied by the decree of the court below sustaining the demurrer to this part of the petition. This contention must be regarded as being now definitely settled in this state. This very question was determined in the case of Ales v. Plant, 61 Miss., 259, which counsel ask us to overrule. The request is not to be complied with. The rule announced in that case has been accepted and acted upon for ten years, and, during that period, a revision of our code of laws has been made, and the sections of the code of 1880 interpreted in the case referred to have been bodily brought forward into the later code, without change or modification. We are bound to suppose that they were brought forward unaltered in the later code with the full knowledge of the legislature that they had received the construction placed upon them in Ales v. Plant. The door to further controversy on this subject is now closed. The belated creditors cannot have sale of' the lands of the estate of the decedent.
The contention of appellant’s counsel as to liability on the part of Bobinson and Harris, the sureties on the administrator’s bond, cannot be seriously considered. That the administrator was guilty of a breach of the conditions of his bond in that he wrote misleading and designing letters to creditors, whereby they were beguiled into a sense of false security, and that his sureties are thus made amenable to the penalties •of a breach of the bond, is utterly rrnsound. It is purely fanciful.
Affirmed.