Roberts v. Rogers, 28 Miss. 152

Roberts v. Rogers

28 Miss. 152 | Miss. | 1854

Mr. Justice Fisher

delivered the opinion of the court.

This was a bill of review filed by the appellants in the probate court of "Wayne county, to open the final settlement made by the appellee as administrator of the estate of Henry F. Rogers, deceased.

Among other things, it is alleged, that the administrator paid sundry claims against the estate, which were barred by the statute of limitations. This allegation is met by the answer and proof introduced on the part of the administrator, showing that the intestate left the State about the year 1839 or 1840, and never returned to it again. The counsel of the appellants, however, contend, that while this might have operated to stop the running of the statute, if pleaded against the creditor, it cannot avail the administrator, as he voluntarily paid the debts.

An administrator is only bound to interpose the statute of limitations to defeat a recovery, when under the facts which are known to exist, it can avail as a successful defence. In making voluntary payment he only assuiues upon himself the responsibility of showing, in any future contest with the dis-tributees, that the debts, though paid under no legal compulsion, were nevertheless such as could have been legally enforced against the estate. He is to be regarded as in no worse position than the creditor was at the time of payment.

It is next alleged, that the administrator was allowed the sum of $1,688 for expenses incurred and services , rendered in bringing the property of the estate, amounting to about $4,000, from the State of Texas to Wayne county, prior to the grant of letters of administration on the estate; and that such charge is not only unreasonable, but is wholly unsustained by any legal principle.

*155We deem it unnecessary to make any comment upon the evidence introduced to sustain this charge, as it is clear that under no rule of law can it be sustained against the estate. While there was no evidence introduced with a view of showing the domicil of the intestate at the time of his death, yet it is manifest from all the proof that his domicil was not in Wayne county, but most probably in the State of Texas, where he died. Administration should therefore have been granted in that State, by the proper court, and the property administered there, and finally distributed, or otherwise disposed of according to the law of the intestate’s domicil. The probate court of Wayne county certainly acquired no jurisdiction over the property until it was brought into that county; and having no jurisdiction over the property, or power to grant letters of administration, until it was brought within the limits of the county, the court could not for the same reason allow a claim for services rendered, or expenses incurred on account of the property, while it was subject to another jurisdiction.

It may be true that in ordinary cases the probate court could and ought to allow a claim for taking care of property, or rendering essential services for its preservation, before letters of administration could be granted, or a collector could be appointed. But whatever the rule may be in such cases, it is clear that it can have no application to the present case. The probate court of Wayne county, if it acquired any jurisdiction at all over the subject-matter, did not acquire it from the fact of the domicil, or property of the deceased being situate in that county, or other cause mentioned in the statute, but from the act of the administrator himself/ Until he brought the property into Wayne county, there was nothing to administer on or to give the court jurisdiction in appointing an administrator.

It is not our intention to decide any thing as to the proper exercise of the jurisdiction of the probate court in this case. The appelleq appears to have been appointed on his own motion, and to have made and returned an inventory, and undertaken to account for the property through the action of the probate court. He ought not, therefore, to be permitted to go out of the record, which he himself has caused to be made, to *156show the invalidity of his appointment. The record not showing his appointment void, it will be treated as conclusive, so far as he is concerned, and estop him from denying or controverting the jurisdiction of the court.

The item .of $1,688 ought to be disallowed. If, as is contended, the administrator made a contract with the heirs before his appointment to bring the property from Texas, he must rely on his contract for compensation, and enforce it in the court having jurisdiction of such matters. It is not a claim either against the deceased, or growing out of the administration of the property, and cannot, therefore, be entertained by the probate court.

Decree reversed, and cause remanded.