Rucker v. Dyer

44 Miss. 591 | Miss. | 1870

PeytoN, C. J.:

It appears from the record in this case, that upon the application of Samuel M. Dyer, as administrator of the estate of William IT. Simmons, deceased, the probate court of Yazoo county declared said estate insolvent, and ordered and decreed that certain lands, owned by said decedent at the time of his death, should be sold for the payment of debts, and that in pursuance of the decree of sale, the said administrator sold the same to J. M. Rucker on a credit of nine months, who gave bond and security as required by the decree of sale for the purchase money.

It is conceded that said Samuel M. Dyer was sheriff of said county of Yazoo at the time be 'was appointed administrator of said estate by the said probate’court, under art. 68 of the Rev. Code, 440, and that he executed no bond prior to the sale of said real estate, for the faithful application of the proceeds thereof, according to law.

The confirmation of the sale was resisted by the purchaser, J. M. Rucker, on the ground that he acquired no title to said lands by the sale, and that the same remains in the heirs of the deceased. The objection was overruled and the sale confirmed by the court; and from this decree of confirmation, the said J. M. Rucker and others appeal to this court. Hence, it will be readily seen that the main question for our determination arises on the construction of our laws on the subject of the administration of estates.

It is insisted by the counsel for the appellee, that as the law of 1857, under which he was appointed administrator, did not require him to give security for his faithful administration of the estate, he was thereby relieved from giving bond with security, prior to the sale of said real estate under the decree of the court for the faithful application of the proceeds of the sale, according to law.

We cannot concur with counsel in this view of the law. The only bond dispensed with by the art. 68 of the Code of 1857, is the one required by art. 63 of the Rev. Code, 438, to be given by an administrator of the personal estate of the decedent, for the faithful administration of that species of property ; the penalty of which bond is required to be only equal to the value of all the personal estate of the deceased. The bond was not intended to secure the proper apjdication of the proceeds of the sale of such real estate, as may be sold by an administrator under a decree of the probate court.

The administrator deals with the personal estate, which is the primary fund for the payment of debts, and has nothing to do in the first instance with the real estate, which descends upon the death of the decedent to his heirs, whose title can be divested only in the mode and manner and for the purpose specially provided in the statute. The sale of real estate by an administrator is regarded as a matter of special jurisdiction, which can only be exercised upon condition that everything has been done which the statute requires should be done preceding the sale. Upon a deficiency of the personal estate to pay debts, our statute authorizes a resort to the real estate for that purpose. And as we have seen that the bond of an administrator, under the law of 1857, does not apply to real estate, and is no security for the proper application of the proceeds of land sold for the payment of debts. The legislature has wisely remedied this defect in the law, by an act approved November 20th, 1858, by which it is provided, that whenever the probate court shall order a sale of land for the payment of debts under the 89th article of the Kev. Code, 446, it shall be the duty of the court to require the executors or administrators, prior to the sale of said real estate, to execute a bond, with good and sufficient security, for the faithful application of the proceeds of such sale, according to law. This applies to all executors and admisistra-tors, without exception. There is no ambiguity in the language of this act. It is clear, explicit and imperative, and. leaves no room for construction. This view of the law is sustained ■ by former adjudications of our predecessors in the cases of Currie v. Stewart, 28 Miss., 646; and Hamilton v. Lockhart, 41 Miss., 469.

The sale in this case is void, for the reason that the administrator did not give the bond required by the law of 1858, and the title to the land sought to be sold remains in the heirs of the deceased, unaffected by the sale. And for this reason, the court erred in confirming the sale.

The decree is reversed, and the cause remanded.