32 Miss. 331 | Miss. | 1856
delivered the opinion of the court.
The defendant below first demurred to the declaration, and his demurrer being overruled, he pleaded, that in March, 1851, he made a final settlement of his administration, upon due notice to the heirs of the deceased, of whom the plaintiff below was one, and was duly discharged as administrator; he further pleaded the Statute of Limitations of four .years. The plaintiff took issue upon the first plea and demurred to that of the Statute of Limitations, which demurrer was sustained.
Upon the trial, the jury returned a special verdict, finding in substance that the plaintiff below was executor and resigned his trust as above stated, and upon his settlement was allowed the sum sued for for commissions, which has not been paid; that on the same day, the defendant became administrator de bonis non, and on the 17th March, 1851, that he made a final settlement of his trust in due form of law, and the same was duly allowed by the Probate Court, — submitting the question whether the plaintiff or the defendant was entitled to judgment, upon the facts, to the Court.
The court gave judgment for the plaintiff, and the defendant brings the case here by writ of error.
The question presented by the demurrer to the declaration, and the only material question arising upon the facts found by the special verdict, is, whether an allowance of commissions by the Probate Court to an executor or administrator upon his resignation and settlement of his final account, is such a debt as the administrator de bonis non is bound to take notice of without demand or presentation, and to pay without a special order of the Probate Court directing him to pay it.
It is certainly true that commissions allowed by the Probate
It does not appear here either that the administrator had notice of the allowance and that it was unpaid, or that there was any order of court directing him to pay it, which latter course was entirely within the power of the plaintiff; and we therefore think that neither the declaration nor the special verdict show any legal ground of action against the defendant below.
The judgment is reversed, and judgment awarded for the plaintiff in error.