Weeks v. Thrasher, 52 Miss. 142

Weeks v. Thrasher

52 Miss. 142 | Miss. | 1876

CAMPBELL, J.,

delivered the opinion of the court.

Caroline M. Thompson died in 1861, leaving a will which *144empowers her executors, or either, to sell a certain lot of land.. The will was probated, and letters testamentary granted to one,, who afterwards resigned. In 1867 letters testamentary c. t. a. were granted to Stephen Thrasher, who proceeded to obtain a. decree declaring the estate insolvent; but said decree of insolvency, instead of ordering said lotto be sold, ordered “that, the parol in this matter do demur, and that this cause do stand, continued from term to term until said Frank P. Thompson shall attain his majority, then to be proceeded in in conformity to, law and the rights of the parties.” This was in October, 1868-In 1872 Stephen Thrasher, administrator c. t. a., advertised that; he would sell said lot by virtue of the power conferred by the-will of said testatrix, and Mrs. Julia A. Weeks exhibited her bill averring that, in the year 1872, and month of February, she purchased said lot from the children and heirs of said testatrix and obtained their conveyance of it, and that there were no-debts of said testatrix, and that the administrator c. t. a. had no right to sell the lot, etc., and prayed injunction to prevent sale. The injunction was granted and the bill answered by the administrator. Two amended bills were afterwards filed,, by leave of court, and the cause progressed to final hearing,, when a decree was made perpetually enjoining the administrator from selling the lot under the provisions of the will, but ordering him to sell it to pay debts, upon his giving bond to-be approved by the court. From this decree Julia A. Weeks appealed, and assigns as error the decree directing the sale of' the lot by the administrator on his giving bond.

It is impossible for us to understand how a decree could be made in this case for the sale by the administrator of the lot mentioned. Mrs. Weeks enjoined the administrator from selling under the will, as he was about to do. Upon his-answer, and at the hearing, the court made the injunction asked by Mrs. Weeks perpetual, and ordered the administrator to sell the lot. Neither Mrs. Weeks nor the administrator had asked such a decree. The answer of the administrator could *145ask no relief, and tbe court could grant none to defendants. It granted all that complainants asked, and tlie order of sale of the lot was wholly unauthorized and improper.

So much of said decree as directs the sale of said lot is reversed and set aside, and in all other respects it is affirmed.