24 Miss. 173 | Miss. Ct. App. | 1852
delivered the opinion of the court.
On the 26th of March, 1849, James M. Ellis, as administrator of the estate of David B. Cooper, deceased, filed in the probate court of Lawrence county, a petition, accompanied with two exhibits; one showing the amount of the personal estate, and the other the debts then owing by said deceased. It also contained a description of certain lands, of which it alleged the deceased died seized, and .estimated the same to be worth $300; from which it appeáred that the estate was insolvent. The clerk of said court was thereupon appointed a commissioner, to receive and report the claim exhibited against said
The appellant at the proper time appeared and answered said petition, stating that he had purchased the said lands from the heirs at law of David B. Cooper, deceased, for a valuable consideration, and insisting that at the time the appellee administered on said estate, and for a considerable time thereafter, there was other personal property of the intestate, which the administrator, with ordinary diligence, might have reduced to possession, &c.
On the trial, the appellant introduced a witness, who proved that, in the year 1843, one Sills was the collector of the estate of the deceased, and that he, witness, placed in the possession of said collector a certain slave as part of the estate of the intestate. This slave does not appear in the inventory. He also offered to prove that there were four other slaves, known tp the administrator, in Hancock county, for several years after he had administered on said estate, part of the intestate’s estate, which might have been recovered by the administrator. This proof the court refused to receive, or rather allow the appellant to make. Other proof to the same effect was offered, but rejected by the court.
The letters of administration to the appellee, bear date the 24th of March, 1845, from which it will appear, that four years had elapsed before the estate was declared insolvent.
This statement of the case is deemed sufficient to present the only questions necessary to be noticed.
The question to be decided is, whether the heir at law, when an administrator shall petition the probate court to sell the lands of the intestate to pay debts, can show that the insufficiency of the personal estate for that purpose, resulted from a neglect of duty, or waste of the assets by the administrator.
The appellant having acquired the rights of the heirs by a purchase from them, is entitled to make, in this controversy, any defence which the law would allow them to make; and it will, therefore, be treated as a case between the administrator and the heir at law. It is only under a certain contingency, that
By our law", the personal estate stands first chargeable with the payment of debts, which must be satisfied before the claims of legatees or distributees can be admitted. But we will proceed to notice the regulation of the law on the question to be decided. After stating how the administrator shall proceed to subject land to the payment of debts, when'the personal estate shall for that purpose be insufficient, the statute says that “ the orphans’ court shall at the time specified in the citation, or at such other time as it may then appoint, hear and examine the ' allegations and proofs of the said executor or administrator, and of. other persons interested:' And if the said court' on such examination, shall find that-the personal estate of such testator or- intestate is not sufficient to pay his or her debts, the said court shall direct” the sale of the land, &c. Hutch. Code, 667. The court is required to examine the allegations and proofs of the administrator, and of other persons interested; and for what purpose ? to ascertain whether the personal estate is sufficient to pay the debts of the estate; if sufficient, then no sale of the land is ordered; if not sufficient, then the court orders a sale.
The statute, in effect, prescribes the issue to be tried. It is whether the personal estate is insufficient to pay the debts of the estate, and the parties to this issue are the administrator, who avérs the insufficiency of the personal estate, and those interested in the lands sought to be charged, who aver the affirmative of the proposition, or sufficiency of the personal estate. The court is to hear the allegations and proofs. This implies the right of both parties to make allegations, and sustain them by proofs, and a duty on the court to decide the case according to the weight of evidence introduced before it.
Having ascertained what was the issue in the court below, we will next proceed to notice, the relevancy of the evidence offered on the part of the appellant. We, of course, can say
Suppose the facts which the appellant proposed to establish, had appeared by an inventory furnished by the administrator, could a doubt exist as to the solvency of the estate ? We think not. The appellant proposed to prove, in effect, that the estate had become insolvent, through the neglect or omission of duty on the part of the administrator. This proof was certainly relevant to the issue. The law has plainly prescribed the duties of administrators. They must inventory all property which may come into their hands, or which they may know to be in the possession of another person. The proof was offered to be made that there were certain slaves, known to the administrator, in the possession of another person, and part of the estate. This proof was relevant to the issue.
But without multiplying reasons, we have no hesitation in deciding the law to be, that if the personal estate become insufficient to pay debts in consequence of a devastavit or neglect of duty by the administrator, that the heir at law can insist bn this as a defence against the sale of the lands descended. In such case, the creditor’s remedy would be by an action on the bond of the administrator, and the judgment of the probate court in refusing a sale of the land, would be equivalent to deciding that the personal estate was sufficient to pay the debts of the intestate, and had been wasted by the administrator.
But this point as to the effect of the judgment of the probate court, is not necessarily involved, and we, therefore,' express no binding opinion on the subject. Another question may be noticed. It appears from the record, that four years had elapsed before the estate was declared insolvent. Some of the claims reported by the administrator as debts against the estate, do not appear to have been reduced to judgments; and we are not informed as to the time when the judgments were recorded, as to those reported. No suit can be maintained against an administrator, after four years from the grant of his letters of administration. Hutch. Code, 830.
And whatever would be a good defence against a suit on a
We see no good reason why the administrator should refuse to answer the interrogatories proposed, as to the correctness of his claim,'as he has to prove.its correctness by his own oath, as well as the testimony of witnesses, if it be an open account; and the statute gives commissioners of insolvency the right to examine a creditor on oath.
Judgment reversed; cause remanded to be proceeded in according to this opinion.
