43 Miss. 140 | Miss. | 1870
Thomas C. Pollock as surviving administrator of the estate of J ames L. Galeote, deceased, instituted suit in the circuit court of Copiah county, against Robert W. Buie and Alexander M. Buie, as executors of the last will and testament of Neill Buie, deceased, and B. Pendleton, on a writing obligatory for $1,505, executed by said Neill Buie, deceased, and B. Pendleton, on the 7th day of February, 1859, and payable to Stephen Odell and Thomas 0. Pollock as administrators of the estate of the said James L. Galeote, on the 15th day of December next thereafter.
At the October term of said court, 1866, the defendants Robert W. Buie and Alexander M. Buie, appeared and pleaded that they were not executors of the said Neill Buie, deceased, having settled the administration of said estate and been finally discharged by the probate court as executors of said
At the April term, 1868, the said defendants, Buie, by leave of the court, filed an additional plea of payment upon which issue was joined, and the cause again submitted to a jury, who found a verdict for the defendants, Buie. The plaintiff then moved the court for a new trial, which motion was overruled by the court, and judgment rendered against the plaintiff for costs of suit. To the action of the court in overruling the motion for a new trial, the plaintiff filed his bill of exceptions, and prosecutes here this wilt of error.
The record in this case presents two important questions for our decision: 1st. Was the decree of the probate court on what purported to be a final settlement of the account of the executors of the last will and testament of Neill Buie, deceased, void for want of notice to the parties interested ? 2d. And if said decree was not void, did it constitute a bar to the plaintiff’s action against said executors?
With respect to the first question, the record shows a waiver of notice by citation, and consent that the account of said executors may pass to a final hearing on the part of all the legatees and devisees of the testator, except Dorothy V. McCall, upon whom citation had been executed by the sheriff on the 18th day of September, A. D. 1865. And the decree recites that all the legatees and devisees had due and legal notice of the pendency of the account, and waived citation, and that all the said legatees and devisees were of
This brings us to the second and most important question in the cause: “ If the decree be valid, did it constitute a bar to the plaintiff’s action against the said executors?” The solution of this question involves the consideration of the power of the court of probates to discharge an executor or administrator from the further execution of his trusts upon what purports to be a final settlement of his administration account, and of the effect of such a decree as to the right of creditors of the decedent.
In the case at bar, the decree of the probate court, upon which the executors rely as a defense to this action, was rendered on the 3rd day of October, 1865, and this suit was
Article 81 of the Revised Code of 1857, page 443, provides that it shall be the duty of every executor and administrator to proceed to pay the debts as speedily as may be, out of the assets which may come to his hands, if the estate be solvent; and in order that its true condition may be speedily known, it shall be the duty of the executor or administrator, within two months after the grant of his letters, to publish in some newspaper printed in the county, or in some adjacent county, a notice requesting all persons having claims against the estate of his testator or intestate, to exhibit the same and have them registered in the mannner and within the time prescribed by law, or they will be forever barred; which notice shall state the time when letters were granted, and shall be published for six consecutive weeks, or longer, if the court should so direct. And the statute further requires that
An executor or administrator takes the estate of the deceased in trust, first for the benefit of creditors, and then for the legatees or distributees, and no estate can properly be said to be fully administered, so long as there remain debts of the estate to the payment and satisfaction of which the estate is liable. And hence the law provides that when the estate has been fully administered by payment of the debts, and the collection of all the money due, it shall be the duty of the executor or administrator to make a final settlement of the administration by making out and presenting to the court under oath, his final account. Rev. Code 451, art., 106. And if all process be returned duly executed, or the parties interested have been legally and properly notified of pendency of the account and of the time and place of settlement, the court may at the time appointed, proceed to examine the final account so filed, and to hear the proofs in support of it, and the objections and proofs against it. And if the court shall, after full investigation, be satisfied that it is just and true, it shall proceed to make a final decree of approval and allowance, ratifying and confirming the administration, and shall at the same time, order the executor or administrator to make immediate distribution of all property
It is-insisted by the counsel for the defendants, Buie, in error, that the settlement was made under the said 67th article of the Code, and was not a final settlement of the estate, but was a final settlement of the executorship of these defendants, and a resignation of their trust by the consent of the court, and that from the nature of this act, the decree necessarily put an end to their capacity to act for the estate, and that after this decree and final settlement, they were discharged from the trust and only liable to be sued on their bond, for such devastavit as they may have committed during their term of office. This argument is more ingenious than sound. The decree itself purports to be a final settlement of the whole estate. It states that it appearing to the satisfaction of the court that legacies were all fully paid and discharged, and that there was found due to the said executors upon the settlement, the sum of $2",726 03, and the court thereupon discharged the executors, and decreed that the
If, in the course of administration, any portion of the estate is ordered to be distributed, the interests of creditors are secured by requiring the distributees to give refunding bonds to meet the debts and liabilities of the estate. But this is never done upon a final settlement of an estate, for the reason that the debts are presumed to have been paid.
From this view of the law, it will clearly appear, that while there are valid and subsisting debts against the estate, the executor or administrator cannot be legally discharged from the trust of his administration, except by death, resignation, or removal; and upon the happening of either of these events, it is provided that administration de bonis raen shall be granted. This keeps the doors to the estate open, so that the creditors may have an opportunity to collect their claims against it. But if, as is insisted, the settlement of an estate, purporting to be final, precluded existing creditors from instituting suits against the executor or administrator for the collection of valid and subsisting claims against the estate, great wrong and injustice would be the result, and the pri
The creditors are not bound by a decree of the probate court upon the settlement of the administration of a solvent estate, for the reason that they are not parties or privies to it. Thornton v. Glover, 25 Miss., 134. For there-is no principle better settled than that no person is bound by a judgment or decree to which he is not a party or privy, unless it be a decree or judgment in rem. But no person can properly be regarded as a creditor of an estate whose debt has been barred, and who has not a valid and subsisting claim against it.
The decree of the probate court was no bar to the plaintiffs right of action against the executors, and in case of recovery the property administered and distributed would still be liable to be taken in execution for the satisfaction of
Upon the whole, we have arrived at the conclusion that the settlement of the executor’s account in the probate court, though valid as to the parties to it, is not a bar to the plaintiffs action in this case. And for that reason the judgment must be reversed, the verdict set aside, and the cause remanded for a new trial, upon which the plaintiffs action will be subject to all the defenses arising from the statutes of limitation, payment or otherwise, to which any executor
Judgment reversed, the cause remanded, and a venire de novo awarded.