Opinion
No. 28712.
May 19, 1930.
1. EXECUTORS AND ADMINISTRATORS.
Executor administering homestead as part of estate must account for rent.
2. EXECUTORS AND ADMINISTRATORS. Executor administering homestead as part of estate, and receiving in individual capacity benefit of rent, should be charged with his share of upkeep of place.
The executor contended that his interest in estate should not be charged with his pro rata share of upkeep of homestead while being administered by him as part of estate, on ground that he did not give his assent to any expenditure for upkeep of place.
3. EXECUTORS AND ADMINISTRATORS.
Where executor appropriated money to his use during period of administration, and never filed annual account, court properly imposed penalty by charging interest and refusing to allow commission.
APPEAL from chancery court of Montgomery county. HON. N.R. SLEDGE, Chancellor.
W.T. Knox, of Winona, for appellant.
There is no provision in section 2130 of Code 1906, section 1798, Hemingway's Code of 1917, authorizing or empowering the court to deny to an executor or administrator his commissions, for a failure to make and file annual settlements or for any other cause, in fact the latter part of said sections require the court to allow to an executor or administrator as compensation for his trouble not less than one nor more than seven per centum on the amount of estate administered; and so I respectfully submit that the court in this cause erred in not allowing the said executor his commissions.
Walton et al. v. Walton's Estate, 143 Miss. 666, 109 So. 707.
J.O. Bomer, Jr., of Memphis, Tenn., for appellees.
Relative to the complaint that the executor was improperly not allowed any fees or commission, we consider it sufficient to say that this record reeks with the malfeasance, mis-feasance and non-feasance of the executor. He handled this estate without filing a single statement in court for approximately ten long years, and would give no one information, and carried the money out of the state. In fact, he did everything that he should not have done, and left undone everything that he should have done, so that no penalty could be too heavy.
In the case of Walton v. Walton, 143 Miss. 666, 109 So. 707, cited by adversary counsel, the court merely expressed the opinion that the chancellor went too far in view of the facts of that particular case in not allowing the executor some commission.
J.W. Conger, of Winona, for appellees.
An executor or administrator shall not remove any of the property of the estate out of this state . . . and in case of any such removal . . . judgment shall be rendered for the full value thereof and such other damages as the parties suing shall have sustained.
Hemingway's Code, sec. 1770 (Code 1906, sec. 2102).
If any trustee mingle the trust fund with his own he is liable for interest. His mere readiness to pay over the fund when called on will not exempt him from liability for interest when he has mingled it with his own money.
Satterwhite v. Littlefield, 13 S. M. 302; Anderson v. Gregg, 44 Miss. 170; Kerr v. Laird, 27 Miss. 544; Cole v. Leake, 27 Miss. 767; Cason v. Cason, 31 Miss. 578; Brandon v. Hoggatt, 32 Miss. 335; Banks v. Machen, 40 Miss. 256; Owens v. Owens, 84 Miss. 673, 37 So. 149; Troup v. Rice, 55 Miss. 278.
An executor or administrator in his capacity as such, and dealing with matters about which he may lawfully exercise authority, is as much bound by the law of estoppel as if he were acting in his individual capacity.
91 Miss. 877, 45 So. 7; 79 Miss. 129, 29 So. 822.
Under the Code of 1906, secs. 2012, 2071, 2079 (Hemingway's Code, secs. 1677, 1738, 1746), heirs and devisees should have notice and hearing of a proceeding by an executor to obtain possession of real estate, where will did not confer any special power on executor to control, and there was sufficient cash on hand to pay debts.
Miles v. Fink, 119 Miss. 147, 80 So. 532.
Where an executor is not empowered under the will to possess lands, notice must be given the heirs.
124 Miss. 194, 86 So. 584.
And, if he pleads plene administravit, he must show that he applied the assets as the rightful executor could have done.
32 Miss. 309.
He is liable for all he receives.
107 Miss. 432, 65 So. 503.
We think the evidence, fairly interpreted, shows that, after the death of the widow, appellant, in his capacity as executor, took charge of, and administered the homestead as a part of, the estate of the testator; and had in his hands, when his final settlement was made, as the net proceeds of the rents of the place, four hundred seventy-seven dollars and three cents. It is immaterial as to whether appellant was in error in assuming that the homestead was a part of the estate to be administered by him under the will. He took that course, and he will not now be heard to say that he is not liable to account for the rents; nor will he be heard to say that his interest in the estate should not be charged with his pro rata of the upkeep of the homestead while being so administered by him, on the ground that he did not give his assent to any expenditure for the upkeep of the place. Appellant, in his individual capacity, got the benefit of the rents, and in equity and good conscience should be charged with his share of the upkeep of the place, which the evidence showed was necessary in order to produce the rents.
The evidence was sufficient to justify the court in finding that the $699.33, which appellant took to Memphis with him, was, during the period of his administration of the estate, appropriated to his own personal use. In addition to taking these funds out of the state and appropriating them to his own personal use, appellant, during the period of his administration of the estate of more than eight years, never filed an annual account of the affairs of the estate.
The court, in the final account, charged him with interest on the six hundred ninety-nine dollars and thirty-three cents, and also on $477.03, the rents of the homestead; and refused to allow him any commissions for his services as executor. This was done as a penalty on appellant for his maladministration of the estate. In a proper case the court is authorized to impose such a penalty; and we cannot say from the evidence in this case that the chancellor was manifestly wrong in imposing the penalty.
Affirmed.