Patton v. Pinkston

86 Miss. 651 | Miss. | 1905

Cox, J.,

delivered tbe opinion of tbe court.

Mrs. Sarah E. Pinkston and Samuel W. Emmons, complainants below and appellees here, in their bill against Samuel R. Patton and Julia A. Patton and W. A. Gage & Co., who are appellants here, allege that complainants and said Julia A. Patton, being tbe wife of said Samuel R. Patton, are tbe children and only heirs at law and distributees of Eranklin Em-mons, deceased, who died in 1904; that said Eranklin Emmons left a last will and testament, which has been duly probated, naming one J. B. Boothe as executor, who has failed and refused to qualify, and that no letters testamentary or of administration have been applied for or issued; that at tbe time of bis death tbe said Eranklin Emmons owed no debts and bad no debts due him, as far as complainants can ascertain, except as set .out in said bill, and no necessity exists for any administration, all of bis. property having been specifically devised; that some time in 1895 tbe said Eranklin Emmons turned over to said Samuel R. Patton, husband of bis said daughter, Julia A. Patton, with whom be then resided and with whom be continued to reside until bis death, in 1904, certain moneys described in said bill, with the understanding and agreement that the said Samuel R. Patton should lend or invest said moneys for the benefit and in the name of said Franklin Em-mons, and that the income, or so much thereof as might be necessary for that purpose, should be used in paying the living expenses of said Eranklin Emmons; that said Samuel R. Pat-, ton, instead of investing said money in the name and for the benefit of said Franklin Emmons, as he agreed to do, intermingled the same with his own funds and those of his wife, and invested them in his own name and that of his wife, all of which was unknown to Franklin Emmons until some time in 1898; that said Samuel R. Patton failed and refused to render any account of the manner in which he invested said money to Franklin Emmons, and refused to render any account thereof to complainants. Certain lands are described in the bill, in which it is charged that said Samuel R. Patton invested a portion of the money of said Franklin Emmons, as above set out, taking title as to part to his wife, the said Julia A1. Patton, and as to part to himself. As to a certain lot, of which title was taken to his wife, it is charged that he executed a trust deed in favor of defendants, W. A. Gage & Co., his wife not joining in the trust deed. The bill further alleges that by his last will and testament, which is made an exhibit to the bill, the said Franklin Emmons specially devised and bequeathed to complainants and their sister — the defendant, Julia A. Patton — the principal and interest of the fund so held in trust by said Samuel R. Patton in equal parts, and directed that the same be collected from him. The will itself recites that “it is my will that my expenses for board and clothing for the term of years that I have been living in the home of said S. R. P'atton be first paid to him out of the proceeds of said crops of cotton (ten bales) and out of the principal and interest of the amount in his hands, and that the remainder of said sum of money be recovered and divided equally between my three children — Julia, Sallie, and Samuel. The bill prays that an. account be taken and stated as to tbe amount due complainants from tbe said Samuel ft. Patton, and as to expenses due said Patton on account of tbe said Franklin Emmons; tbat a decree be rendered for tbe sum so found to be due, and tbat tbe same be declared a lien upon tbe real estate described in tbe bill, and tbat tbe same be sold to pay whatever sum may be found due. Tbe bill concludes with a prayer for general relief. Defendants demurred, and tbeir demurrer was overruled, from wbicb action tbey bave appealed to tbis court.

Tbe first ground of demurrer urged is tbat complainants bave not made out any title to tbe relief sought, but tbat tbe suit should bave been instituted by an administrator cum testa-mento annexo. We do not think there is any merit in tbis contention. The bill shows that no letters bave been issued and tbat there are no debts. Tbis court has held repeatedly tbat in such a case administration is not necessary, but tbat tbe distributees may sue in equity in tbeir own names to recover a debt due tbe intestate. If tbis may be done by tbe dis-tributees of an intestate, by parity of reason it may also be done by legatees to whom a specific debt or demand has been given. Nor will tbis right be defeated by tbe possibility that tbe funeral expenses and cost of probate of will are outstanding charges against tbe estate. Even if these charges are yet due by tbe estate, tbe creditors would not be injured by giving complainants tbe relief sought in tbeir bill. As was aptly said in Ricks v. Hilliard, 45 Miss., 363, 364: “A recovery by them does not cut off creditors or put them in a worse predicament than tbey were before.”

We do not concur in tbe contention of appellants’ counsel tbat tbe bill should not be entertained because one of tbe legatees to whom Franklin Emmons bequeathed tbe demand sought to be enforced in tbe suit, Mrs. Julia A. Patton, is not a complainant, but appears as a party defendant to tbe suit. We fail to see what difference tbis can make. Tbe bill is rich in equity. The right to tbe relief sought is clear. All tbe parties in interest are before tbe court. It is too refined and tecbnical to say tbat tbe court is without power to grant tbe proper relief because, notwitbstanding all tbe parties in interest are before tbe court, tbey do not all appear on tbe same side of the case. In Wood v. Ford, 29 Miss., 57, a similar case, tbe jurisdiction of tlie court was sustained on demurrer, although one of the dis-tributees was a defendant against whom complainant prayed relief; and in Rabb v. Griffin, 26 Miss., 579, there was a like condition, with like result. Tbe jurisdiction of tbe equity courts are as full now as when these cases were tried, and their powers are ample to do complete justice between cordistributees or co-legatees in a case where one may deny the right or resist tbe demands of tbe others.'

There is no merit in appellants’ contention tbat complainants’ suit is barred by tbe six-year period of limitation. Tbe case made by tbe bill shows a constructive trust in favor of the legatees of Franklin Emmons in tbe land described in tbe bill, and is subject to tbe ten-year period of limitation prescribed by Code 1892, § 2763.

Affirmed and remanded, with leave to answer within sixty days from filing of mandate in court below.