84 Miss. 673 | Miss. | 1904
delivered the opinion of the court.
. We have given this case, in all its details, the most thorough and painstaking consideration. The principles which must control it are not new. They are well considered and have been long established. We shall refer to no authorities in the course of this opinion, for the reason that counsel on both sides have, in their briefs, collated the authorities applicable, in the most admirable manner; and we content ourselves with referring to those authorities, all of which we have carefully examined.
It is the facts of a cáse which make a case, and it is the testimony in this case which must bring into relief, clear and distinct, the conduct of these executors, as falling within or without the condemnation of the law. If we were to set out in detail the facts, the opinion would be unpardonable in its length, and would bé a mere array of bits of testimony, making up the whole outline of the- case. We shall announce the conclusions at which we have arrived with only such comments as- may be necessary to make clear what we mean.
There are three appeals before us. The first we shall deal with is the appeal of Mrs. Laura L. Owens, executrix of A. T. Owens, deceased. Pour errors are assigned; the first being
The third appeal is that taken by the heirs of Silas Owens,
Taking up these in their order, we say that the first assignment is well taken. Silas Owens died in August, 1889, and these two executors qualified on the 20th of September, 1889. Price, one of the executors, took out letters of administration c. t. a. in North Carolina, and ultimately received from that source some $20,000. On the 6th of February, 1890, the executors filed their inventory of stocks, bonds, and notes, which aggregated $83,291.09. The executors proceeded with the management of the estate, but transacted very little of the business through the proper medium, the chancery court. Each year application would be made to the chancellor to allow a sum to be expended for the support of the children, and this was, in the main, everything that these executors did through the
It is important to remember in this connection that A. T. Owens was president of the Bank of Oxford, and that Bern Price was cashier and active manager, and that both were large stockholders in the bank, and that Silas Owens during his life was the largest stockholder in the bank. As soon as Price collected the $20,000 from the North Carolina property, he brought it to Oxford, and put it into the Bank of Oxford. In the month of February, 1892, the executors filed their first annual account, and then distributed amongst the heirs some eighty odd thousand dollars, consisting chiefly of stocks, and partly of cash on hand — that is to say, the money was represented as distributed, but in fact mpne was paid out to the minor heirs, but it was still kept in the bank, where these executors passed the money to the credit of themselves as guardians of
It is very strongly urged, and a great many authorities are cited to support the proposition, that inasmuch as these executors styled theihseives testamentary 'guardians, and charged themselves up as testamentary guardians on the books of the bank, they should be dealt with as guardians, and estopped to deny that they were, and charged with interest at ten per cent per annum, compounded. The will did not make them guardians; they were never appointed guardians by the chancery court; and Price gives as his explanation of why he signed himself “testamentary guardian” in a petition which he himself drew, and charged himself as testamentary guardian on the books of the bank, that he did so simply to keep the accounts of the minor heirs separate. We are not prepared to say, in view of the whole testimony touching this matter, and in view of the rule laid down in Troup v. Rice, 55 Miss., 278, as to the rate of interest to be charged in such cases, that any higher rate than the legal rate — six per cent per annum — should be charged against these executors.
As to the second assignment of error, it is enough to say that, on the whole, we do not think it is supported-by the testimony.
As to the third assignment of error, we think the court should have charged these executors with interest on the small sum involved for the period they allowed it to remain in the hands of Latham, Alexander & Co., without excuse therefor. They left this money in. the hands of these New York bankers for nearly fifteen years, and in fact never collected it until compelled to do so by this proceeding.
As stated, the matters of commissions and of attorney’s fees were reserved by the chancellor, and are not before us for re
The seventh assignment of error is clearly well taken in part. There is an observation to be made about this assignment —-to wit, that it fails to note the fact that A. T. Owens did not pay back any part of the $1,610 allowed him for commissions to the surviving widow of Silas Owens. It is plainly shown by the vouchers that he paid the whole sum to his nieces and nephews. The widow was just as clearly entitled to her one-seventh part as the nieces and nephews to their respective parts. There were seven heirs, including the widow, and one-seventh of $1,610 would be $230; and if, therefore, A. T. Owens had returned his commissions to the estate, or distributed the same amongst all the heirs, as Price erroneously says he did, then each of the heirs would have been credited with $230; but the fact is that, under the bookkeeping, the widow was left out entirely, for one-sixth of $1,610 is $268.33 1-3, and this is the exact sum, to a cent, credited to each of the minor children. Whilst it is true that technically it may he said that Owens, since he left out the widow and receipted for the commissions, dealt with the commissions as his own, and made a donation of them, not to the estate in general, but to his six nieces and nephews, yet what he intended is clear, and substance must not be sacrificed to form. He declined to receive any commissions whatever. He actually had outside counsel to intervene and get Chancellor Trigg to reduce the commissions from five per cent, the rate first allowed, to four per cent, and then immediately directed Price to credit back his commissions to the estate. That was his purpose, clear and definite — to accept no commissions whatever, and to return those allowed to his brother’s estate. Because subsequently he and Price, in making out their final account, in the mere matter of form, credited only the six minor children, instead of crediting the widow as well, to hold that the manifest intention of A. T. Owens, the real fact standing out clear, shall be sacrificed to a mere trick of bookkeeping,
It follows from these views that the chancellor in the court below erred in the respects indicated, and that the decree on the cross-appeal is reversed in these particulars, and the cause remanded on cross-appeal, to be proceeded with in accordance with this opinion. The costs attending the appeal of Mrs. Laura L. Owens, executrix, will be taxed against her as executrix; the other costs will be taxed against the executors.
Decreed accordingly.