43 Miss. 338 | Miss. | 1870
It appears from the record in this case that John W. Patty, as administrator de bonis non of the estate of Ewell Lam-kin, who died intestate, filed his petition in the probate court of Winston county, setting forth that one Thomas Davis, who was the administrator of the estate of the said Ewell Lamkin, had departed this life intestate, without having made a final settlement of his administration of said estate, and that Brooks J. Rives became administrator of the estate of the said Thos. Davis, and praying that said Rives may be cited to appear at said probate court, and make a final settlement of his intestate’s administration of the estate of said Ewell Lamkin, deceased.
■ From this decree the said Brooks J. Rives brings the cause to this court, and in the view we take of this case, it will be necessary only to notice the^following assignments of error : The want of notice to the parties interested in the said final settlement, and that the administrator cle bonis non has no right to call the administrator of his deceased predecessor to an account for the administration of the estate of his intestate.
It was undoubtedly the duty of the administrator of Thos. Davis to settle the account of his intestate, in the administration of the first estate. Rev. Code, 439, art., 65. And upon the filing of the final account, the parties interested being in the state, should have been cited to appear at the time appointed, and that publication should have been made as to all parties interested, Avho were non-residents of the state, notifying them to appear and show cause, if any they can, why the final account should not be allowed and approved. Rev. Code, 451, art. 106.
There is no evidence in the record that the parties interested were notified in any way to appear at the time appointed for the settlement, and for that reason the decree of the court is void. For it is well settled as a general rule, that no person is bound by a judgment or decree, of which he had no notice.
The second of the above assignments of error involves the consideration of the powers and duties of an administrator de bonis non, and of his right to call the administrator of the previous deceased administrator of his intestate to account for any property of the intestate that such predecessor may
By the English law, where an executor or administrator may sue in his representative character, the right of action devolves upon the administration de bonis non, of the original deceased; for he succeeds to all the legal rights which belonged to the first executor or administrator in his representative capacity. Cartherwood v. Chaband, 1 Barn. & Cres., 150, and s. c. in 2 Dowl. & Ry., 271. And this principle is recognized and incorporated into our law. Rev. Code, 457, art. 135.
According to that law, an administrator de bonis non cannot call the representatives, of the previous deceased administrator of the intestate to account for any property of the intestate, that such predecessor may have converted or wasted; nor can he claim or recover anything, but those goods, chattels and credits of his intestate, which remain in specie, and those choses in action taken or held by his predecessor in his official capacity, and which are capable of •being clearly and distinctly designated and distinguished as the property of his intestate.
By our law, the only remedy against an administrator or executor, or his representative for any waste or misapplication of the effects of the deceased, is by action at law on his official bond, by any one interested, either as creditor, legatee or distributee. And the administrator de bonis non has authority only to administer the unadministered personal estate of the deceased, which remain undisposed of by the previous administrator. He is appointed to finish the business already commenced. And as a general rule, between him and his predecessor there is no privity. His letters give him power to act and represent the deceased so far (and so far only), as there remained unadministered goods, chattels and credits, which belonged to the estate of the decedent. Coleman v. McMerdo, 5 Randolph, 94.
By the just and equal operation of these general rules, these two officers, representing the intestate’s estate successively, are protected from conflicting and contradictory claims. Each stands alone, in relation to the creditors and distributees, of responsibility, to an extent well defined and easily ascertained, but neither is responsible to the other. For any such responsibility would mar the symmetry of the system, and introduce disorder and injustice.
The extent of the liability of an administrator de bonis non is defined by the condition of his bond, and is limited and restricted to the estate not administered. No part of the condition creates or recognizes any privity between him and his predecessor, nor makes him responsible for any devastavit, or default of another, either of omission or commission. Alsopp v. Mathers, 8 Conn., 564; Thomas v. Hardwick, 1 Kelly, 78; Young v. Kimball, 8 Blackford, 167, and Hagthorp v. Hooker’s admrs., 1 Gill. & Johns., 271.
The adjudications of the court of the last resort in this state fully sustain the doctrine above indicated, that an administrator de bonis non has no right to call his predecessor to account or sue him, except for property remaining in specie, unadministered or choses in action taken or held by Mm in his official capacity.
The law requires every executor or administrator to give bond and security for the faithful performance of his duty. The bond is intended as an indemnity to those interested in the estate, either as legatees, distributees or creditors, and for no others. Every person thus interested may put the bond in suit, and his recovery is commensurate with the
For the reasons set forth in this opinion, the decree of the court below is erroneous, and must be reversed, and the cause remanded.