86 Miss. 540 | Miss. | 1905
delivered the opinion of the court.
Upon an appeal of one branch of this case, reported in 82 Miss., 93 (s.c., 33 South. Rep., 946), this court decided upon the facts contained in that record that the creditors of the estate of W. A. Bounds were not entitled to have the administrator removed, and that the administrator and his bondsmen were not properly chargeable with certain alleged assets of the estate of W. A. Bounds, which the chancellor had decided as a finding of fact had been retained hy the widow and had never come into the actual or constructive possession of the administrator. Upon the case made hy that record the petition of the creditors was dismissed. Subsequently, after due and regular proceedings, the estate of W. A. Bounds was declared to he insolvent. Pending the insolvency proceedings, hut before the decree of insolvency was rendered and before publication to creditors to present their claims for examination and adjudication, the heirs of W. A. Bounds, joining the creditors of his estate, filed certain exceptions to the report of the administrator, which, upon consideration hy the chancellor, were disallowed, as having been “filed out of time.” After the necessary proceedings in the insolvent estate had been completed, the administrator filed his final account, and, as required hy law, all parties in interest were duly summoned to appear and file exceptions to the allowance thereof. Thereupon the heirs and creditors filed certain exceptions to such final account of the administrator, only two of which we deem of sufficient importance to merit consideration. One exception sought to have the administrator charged with the value of a stock of goods which it was averred was owned hy W. A. Bounds at the date of his death. Testimony on both sides
Tbe second exception to tbe final account presented by tbe administrator sought to surcharge that account with tbe item contained in voucher Ho. 8 thereto, which is as follows: “1901, April 4th. J. B. West note secured by D. T. on crops, $3,276.84.” This exception was by tbe chancellor also disallowed, and tbe correctness of bis ruling in that regard is challenged on this appeal. Preliminary to tbe investigation of this proposition, however, it is said by tbe appellee that tbe same question was involved in tbe appeal of tbe other branch of this administration hereinbefore referred to, and that this contention of appellants was there decided adversely to their position. We do not think this question determined by that adjudication. It is true that tbe point was presented ,in one of its phases on that appeal, but not in tbe exact shape in which it is now before us. At the- time when tbe petition of tbe creditors of tbe estate was presented on appeal, tbe estate bad not been declared insolvent,- and tbe final account of tbe administrator, while filed, was still pending, and this court could not decide in advance of tbe final action by tbe chancellor as
It is contended by appellee that the administrator is protected by Oode 1892, § 1937, which provides a method for testing the validity of the claim of any creditor that he has a lien on any property of the decedent. But that section has manifestly no application here. In the instant case no proceeding was instituted by the administrator to test the validity of any claim of lien asserted by West. But of his own mo: tion, without notice to any one, the administrator filed a petition not only not contesting the existence of the lien, but erroneously averring that the lien did exist, and voluntarily asking permission to apply the entire funds of the estate to the satisfaction of a claim which was neither a lien debt nor a preference claim. Her does it appear that West ever contended that he had any lien on the funds of the estate to protect the payment of the vendor’s lien note maturing January 1, 1901, Or that he -took any action seeking to subject the funds to such payment. This note was fully secured on the land and the crop of 1900, and West seems to have been content to let it wait for several months after maturity, and until it was voluntarily discharged by appellee, who, as before shown, had in the meantime acquired a half interest in the land on which it rested as., a prime lien. We hold, therefore, that the note to J. B. West maturing January 1, 1901, was not a lien upon the crop produced in the year 1899, and was not properly payable as a lien debt out of the funds of the estate of W. A. Bounds. Wherefore this exception to'the final account of .George A. Wilson, administrator, should have been sus-
Reversed, and remanded for decree in accordance with this opinion. ■ ' ■ • '