Opinion
No. 32684.
March 15, 1937.
APPEAL AND ERROR.
Where adult legatee sought to have executor account for certain money as belonging to estate and executor claimed such money as his own by virtue of alleged gift by testator, legatee who consented to executor's proceeding in case notwithstanding his interest as executor conflicted with his interest as an individual, held not entitled to dismissal of executor's appeal from decree because of inconsistency in executor's position.
APPEAL from the chancery court of Lincoln county. HON. V.J. STRICKER, Chancellor.
A.A. Cohn and R.L. Jones, both of Brookhaven, for appellee, on motion to dismiss.
The final decree rendered provided two courses which might have been followed by Alex Pitts, Jr., Executor to-wit: (a) the execution of an additional bond as executor and the retention of his office as executor, in which event he would assume the obligation of abiding by and enforcing the decree from which this appeal is prosecuted. (b) A refusal by him to execute the new bond, which would have resulted in the Chancery Clerk becoming the administrator with the will annexed, in which event Alex Pitts, Jr., as an individual would have been at liberty to pursue such a course as to him seemed fit and proper.
It is our contention that the giving of the additional bond, in accordance with a provision of the decree, and, in addition to this, the taking of a new oath as executor, was an election by Alex Pitts, Jr., executor, to adopt and pursue the first course provided by said decree, to-wit: To remain as executor and to protect the interest of the estate, and to abide by and enforce the decree of the Chancellor. This course is entirely inconsistent with the course designated above as "b," and is entirely inconsistent with the assertion of the claim that the money is not the property of the estate.
3 C.J. 665, sec. 536.
When the appellant elected to remain as executor of said estate (which is a valuable right), he assumed a position that was and is inconsistent with his right to appeal from the decree, and he thereby waved his right to have such decree reviewed by this court.
The appellant is estopped by his election to remain as executor of the estate because the decree was in favor of the estate, and, if he had not remained as executor, there would have been no attempted appeal by the executor to this court. By his election he has injured the estate to this extent at least, and is thereby estopped.
Warriner v. Fant, 74 So. 822, 144 Miss. 174.
The decree adjudges that the funds belonged to the estate of Alex Pitts, Sr., and thereby adjudges that they belonged to Alex Pitts, Jr., executor, in his official capacity. The decree, therefore, is in favor of Alex Pitts, Jr., executor, and no person has ground of complaint or the right to appeal from a decree in his favor, and, more especially, is this true of a person occupying a fiduciary position when the decree is in favor of the trust estate. To permit the executor to appeal from a decree favorable to the estate and the trust, which he has executed a bond to protect and taken an oath to uphold, would be so inconsistent with the fundamental law of right and wrong that it would be repulsive to good morals and public policy.
The appellant stands before this court in two capacities, to-wit: As executor, and as an individual. As executor, he is bound under the law, his oath and his bond, to ask that the decree of the lower court be affirmed. As an individual, he is asking that said decree be reversed in order that he in his individual capacity may be benefited to the extent of five thousand dollars, and he, in his fiduciary capacity, be damaged in a like sum. We submit that this is contrary to all principles of justice, equity and good faith, and that no court will permit a person to place himself in such a position.
25 C.J. 1120, sec. 10.
Alex Pitts, Jr., individually, is not a party to this proceeding. The petition filed by the widow, as shown by the record, is against Alex Pitts, Jr., as executor; the motion for time to answer was filed by Alex Pitts, Jr., executor; the decree allowing time to answer allowed the time to Alex Pitts, Jr., executor; the answer filed was filed by Alex Pitts, Jr., executor; and the notice to the stenographer, as shown by the record, was made only by Alex Pitts, Jr., executor. Alex Pitts, Jr., as an individual nowhere appears in the record as a party to the suit prior to the giving of the supersedeas bond. Certainly, the signing of a supersedeas bond is not sufficient to make a person a party litigant, and it requires no citation of authority to state that one not a party to a suit has no right to appeal from the decree or judgment entered in said suit.
Tullius Brady and J.N. Yawn, both of Brookhaven, and Lotterhos Travis, of Jackson, for appellant, on motion to dismiss.
The decree is perfectly clear in its provisions, and there is no language contained therein which put the appellant to the election whether he would resign and appeal or remain as executor and abandon his appeal. The record shows that there was a controversy before the Chancery Court which was litigated in all good faith by both parties, and, therefore, the unsuccessful party must be permitted to review the decision in this court unless there has been a clear abandonment or waiver of that right.
Adams v. Carter, 92 Miss. 578, 46 So. 59; I.C.R.R. Co. v. Cain, 69 Miss. 852, 13 So. 824; Union Planters Bank v. Corley, 161 Miss. 282, 132 So. 78; Mayor and Board of Aldermen v. State, 103 Miss. 645, 60 So. 576; Meaders v. Gray, 60 Miss. 400; Currie v. Bennette, 108 Miss. 852, 67 So. 484; Gordon v. Gibbs, 3 S. M. 473; Currie v. Bennett, 111 Miss. 228, 71 So. 324.
We respectfully submit that the action of appellant in complying with the court's mandate to file an increased executor's bond within ten days did not constitute a waiver of his right of appeal from the decree charging him with a large sum of money for which he was instructed and directed to account as executor.
The purpose of statutes providing for appeals from judgments and decrees is to enable a person who has been unsuccessful in a litigated case to present to a higher court the questions of law involved for a review thereof. We fail to see how it could be contended that an executor will be deprived of this right simply because he happens to have individual rights involved in the litigation.
Every executor would be in a very precarious position if he were to be denied the right of appeal from decrees which might be against his personal interest, because he would never know until the end of the administration whether the Chancery Court might not charge him with funds or property which should not be considered a part of the estate, or refuse to allow him credit for expenditures, which in fact and under the law would be proper charges against the estate.
The authorities amply sustain the appellant's right to appeal in this case.
Sections 17 and 75, Code of 1930; Hudson v. Gray, 58 Miss. 589; Barrow v. Wade, 7 S. M. 49; Gilbert v. Thayer, 10 N.E. 149; In re: Hodgman's Estate, 35 N.E. 660; Tuckerman v. Currier, 129 P. 210; Durst v. Haenni, 130 P. 77; In re: Hall's Estate, 98 P. 269; In re: Hyde's Estate, 145 N.W. 1079; Rufty v. Rankin, 183 Ill. App.? 484; Foster v. Murphy, 107 N.W. 843.
Appellant qualified as executor of his father's will. There were certain pecuniary bequests in the will, including one of $2000 to appellee. The executor returned in his inventory only about $185 of personal property. Appellee filed her petition against appellant, alleging that there was on deposit in a certain bank more than $4000 belonging to the estate, and praying that the executor account for the same. The executor answered claiming the money in bank as his own by virtue of an alleged gift thereof to him by his father, made some time before his father's death.
When the case came on to be heard, the chancellor called attention to the fact that the executor was in court in two capacities, one which would require him to take care of the interests of the estate and see that the money belonging to it was brought in, and, the other, in his own individual interest in resisting what it was the province of the executor to demand; and the chancellor suggested that the proceedings be halted; that the executor be removed and an administrator c.t.a. be appointed in his place, so that thereafter the new personal representative could prosecute the claim, and the old executor could defend as an individual. In response to this suggestion, the solicitors for all the parties, including the solicitors for appellee, stated to the chancellor, in open court, that they were satisfied with the status of the proceedings as respects the point mentioned, and the hearing was thereupon concluded with the result that a decree was entered directing appellant to account to the estate for the said funds in bank and to execute an additional executor's bond to cover the same.
The additional bond was duly executed, and within the time allowed by law the executor appealed to this court, his appeal bond being executed by him both as executor and as an individual, the surety being a surety company authorized to execute such bonds in this state. Appellee has moved to dismiss the appeal on the ground that as executor appellant has prevailed as to all his contentions in the trial court and, therefore, as executor cannot appeal from a decree in his favor, and that he cannot appeal as an individual because of the inconsistency in position which he would thus occupy.
We may concede for the purposes of this discussion that the general rule is that a personal representative can appeal in his representative capacity only when he is aggrieved in that capacity and not when he is aggrieved in his individual capacity only. 4 C.J.S., Appeal and Error, p. 372. We are not called upon to discuss what, if any, exceptions there may be to that general rule. The point which here controls is that the appellee, an adult, may not when directly challenged, in the trial court, upon the precise points involved, agree that no question is raised thereon, and then later turn upon the appellant and make the point upon appeal. Had appellee not expressly consented and agreed as aforesaid in the trial court, the chancellor would have removed the executor and appointed another representative, whereupon the right of appellant to prosecute his appeal would have been without question. Appellee not having then objected may not do so now, the ancient maxim of procedure being applicable, that he who does not object when he could and should, will not be allowed later to object when he would.
Motion to dismiss appeal overruled.