Reedy v. Armistead

31 Miss. 353 | Miss. | 1856

Handy, J.,

delivered the opinion of the court.

The only question presented in this case is, whether a bill filed to enforce the vendor’s lien, for unpaid purchase-money, against the administrator of the purchaser, before the expiration of nine months from the date of the letters of administration, can be maintained.

The statute provides, “ that no suit or action shall be brought against any executor or administrator, in such capacity, till after the expiration of nine months from the date of proving the will, or granting letters of administration. Hutch. Code, 674. Its policy was to allow time to administrators to examine, and understand the condition of the estate; to provide the means of paying its debts, if practicable, without suit, by collecting its assets; and to be advised in relation to any demands against it, which it might be necessary to defend; The exemption is broad, and applies to all suits and actions against administrators, in which they are necessary parties.

In a proceeding like the present, the administrator is a necessary party, because the demand is sought to be enforced as a debt of the estate, for which the personal assets are primarily liable. Story, Eq. PI. § 177. The course is, first, to establish the debt, and then to decree that, unless it be paid out of the personal estate, the land be sold for that purpose. The administrator-may, possibly, be able to show that the debt has been paid in full, or in part, or that for any other reason, it should not be charged upon the intestate’s estate, or upon the specific land; and in order to give him an opportunity to assert such right, it is necessary that he be proceeded against under the general rule, made by the statute, for the protection of administrators, and of estates. And the reason of the statute would appear to apply with as much force to suits of this nature as to any other description of suits, where administrators are necessary parties.

Under this view of the case, the bill was prematurely brought, and the decree must be reversed, and the bill dismissed.

Fisher, J., took no part in this case.

A re-argument was asked for, but refused.