Opinion
No. 33956.
February 19, 1940.
1. EXECUTORS AND ADMINISTRATORS.
One who petitions for the appointment of an administrator of the estate of a decedent must be a creditor, legatee or distributee of such estate.
2. EXECUTORS AND ADMINISTRATORS.
One who petitions as creditor of a decedent's estate for appointment of administrator must prima facie show that he is a creditor.
3. EXECUTORS AND ADMINISTRATORS.
Where an administration is entirely unnecessary, the heirs at law and distributees of the estate, directly interested therein, and from whose estates the cost must be paid, have a right to interpose an objection to the appointment of an administrator, although in doing so they have no right to litigate the situation with one who asserts that he is a creditor.
4. EXECUTORS AND ADMINISTRATORS.
When a prima facie case is made by a creditor seeking appointment of an administrator, it becomes the duty of chancery court to appoint an administrator and the defenses to alleged debt, or the litigation of the indebtedness are matters to be determined in the course of the administration.
5. EXECUTORS AND ADMINISTRATORS.
Where petitioner seeking appointment of administrator alleged that she was creditor of deceased's estate but further alleged that deceased had gone into possession of petitioner's land under a void foreclosure proceeding so that existence of debt depended on whether foreclosure sale was void and where heirs file contest on ground that petitioner did not have capacity of a creditor, chancellor, before appointing administrator should have required petitioner to make prima facie showing that she was a creditor, since allegation that foreclosure sale was void was nothing more than allegation of legal "conclusion" and was not sufficient to establish that a debt existed on account thereof.
6. EXECUTORS AND ADMINISTRATORS.
Where an alleged creditor petitions for appointment of an administrator for estate of alleged debtor, the question of statute of limitations and other questions regarding validity of debt are not properly triable on issue of whether petitioner was a creditor of the estate with a right to have administration of the estate.
APPEAL from the chancery court of Union county; HON. JAMES A. FINLEY, Chancellor.
Marvin Crawford, of New Albany, for appellants.
The public policy of the State of Mississippi with respect to the distribution of estates is favorable to family agreements and to the settlement of estates out of court.
Williams v. Williams et al., 187 So. 209; 23 C.J. 1002, note 60; Henderson v. Clark, 27 Miss. 436; Sec. 1629, Miss. Code of 1930.
As to who may contest the petition for the appointment of an administrator, a careful examination of the cases in Mississippi has not produced much authority on this question. The case of Thompson v. Carter's Estate, 177 So. 356, was the case cited by counsel on their demurrer and apparently was the authority on which the chancellor based his decision. It is respectfully submitted that that case is an authority in the case at bar, but that it is an authority in this case in favor of the contesting heirs and not in favor of the administrator and petitioning creditor, the appellees, because the Thompson case held, "In order for the appellant (petitioning creditor) to have the right to request the appointment of an administrator for Carter's estate, it must appear that Carter died owing a debt to the bank the appellant (petitioning creditor) represents." Furthermore, in the Thompson case there was a promissory note which of course was prima facie evidence of an indebtedness and there is not any prima facie evidence of an indebtedness in the case at bar due from the estate of W.I. Hancock to Mrs. Thella McClellan, the petitioning creditor.
It is further respectfully submitted that the great weight of authority favors the proposition that the heirs may contest the appointment of an administrator.
21 Am. Jur. 436, par. 110; 124 Iowa 34, 98 N.W. 902; 31 Nev. 377, 103 P. 232; 129 Ga. 676, 59 S.E. 912; 23 C.J. 1061, par. 161; 23 C.J. 1090, par. 248; Sec. 1629, Code of 1930.
Within the purview of Section 1629 of the Mississippi Code of 1930, in accordance with the great weight of authority in this country there does not seem to be any question but that there must be at least a showing by the petitioning creditor for letters of administration that he is a prima facie creditor, and under the status of the pleadings in the case at bar on the contest of appointments of administrator and the demurrer, there is no prima facie showing in this case.
174 Miss. 629, 165 So. 542; 172 So. 752; In re Appeal of Mary Miller, 32 Nebr. 480, 49 N.W. 427; Thompson v. Carter's Estate, 117 So. 356; 21 Am. Jur. 411, par. 69.
Under the laws of this state any claim that the petitioning creditor, Mrs. Thella McClellan, might have had against W.I. Hancock in his lifetime from the time that he took possession of the property under foreclosure on March 1, 1933 and up until his death on March 20, 1935 for rents is barred by the three year statute of limitations of the State of Mississippi and also by virtue of Mrs. McClellan not having complied with the provisions of Chapter 262 of the Acts of the Legislature of 1938.
At the death of W.I. Hancock on March 20, 1935 his real estate vested in his heirs and any case that may be filed now to remove cloud from title would have to be filed against his legal heirs at law and subsequent purchasers of the land and not against the personal representative of W.I. Hancock four years after his death.
Fred B. Smith, of Ripley, for appellants.
The petition of Mrs. Thella McClellan was wholly insufficient to warrant the appointment of an administrator.
It is essential to the jurisdiction of the chancery court, in the appointment of administrators, especially where a creditor seeks the appointment of an administrator, that sufficient allegations be contained in the petition for appointment to justify the action of the court in making such appointment. Certain jurisdictional facts must be alleged, and they must not be mere conclusions of the pleader, but must be such as to warrant the court in determining the rightfulness and necessity of the proposed appointment. Such a proceeding is wholly ex parte, is originally had before the clerk without notice to the parties in interest, and usually without knowledge on their part of the proposed appointment. Therefore, a court of equity should be very careful to require that the petition for such appointment should explicitly set forth those facts which are required under the statute to authorize the clerk in making the appointment.
The petition for the appointment of an administrator was fatally defective, and wholly insufficient to warrant the court in appointing an administrator, even though no contest thereof had been filed whatever.
It could not be successfully maintained that a petition is not essential to the proper appointment of an administrator, under our procedure. It is a matter of common knowledge that our method of procedure in such cases is that a petition is filed with the chancery clerk by the party in interest, setting forth the facts warranting the appointment of an administrator, and that on the petition the court acts, the parties in interest come before the court, and jurisdiction is acquired of the subject matter. Sections 372 and 373 of the Mississippi Code of 1930 set forth the forms of bills and petitions, and some of the necessary contents thereof, presupposing that all actions in the chancery court, of every kind and description, must be started by bill or petition.
23 C.J. 1058; 21 Am. Jur. 432, Sec. 104; Miller v. Keith, 26 Miss. 166.
Regardless of the potential jurisdiction which a court may have, that jurisdiction does not become actual in any case until there is presented to the court a formal pleading, stating the facts justifying the exercise of that jurisdiction by the court.
Griffith's Chan. Practice, Sec. 30, page 30; Sec. 1629, Miss. Code of 1930; 49 C.J. 43, 44, 45, 46; State ex rel. Graves v. Henry, 40 So. 152, 87 Miss. 125; Metcalfe v. Merchants Planters Bank, 42 So. 377, 89 Miss. 649; State ex rel. Booze v. Cresswell, 78 So. 770, 117 Miss. 795; Mitchell v. So. Ry. Co., 27 So. 837, 77 Miss. 917; Bank v. Bank, 64 So. 210, 106 Miss. 471; Horton v. Lincoln County, 77 So. 796, 116 Miss. 813.
There was a complete failure of any petition or application for the appointment of an administrator, containing any fact or facts sufficient to justify the court in appointing an administrator, or sufficient to inform the court as to what the true rights of the parties might be.
We respectfully submit that the proceedings on the part of the petition are wholly insufficient to justify and warrant the clerk in issuing letters of administration, and that any party in interest had a right to be heard by the court on the question of whether or not the clerk's vacation act should be approved and confirmed. And because of this total failure of the petition to meet the jurisdictional requirements, this cause should be reversed and dismissed in this court.
According to the record in this case it is not claimed that the appellee had any liquidated indebtedness against the estate of the decedent, nor did she have any evidence of her alleged debt. It was not represented by note, contract, or other written instrument. Her sole contention was based on an alleged wrongful occupation, by the decedent in his lifetime, of a tract of land, in which she claimed some right because of a defect in a foreclosure sale. She further alleged that she had a claim for the occupancy of said land on the part of the decedent, and on the strength of this unliquidated claim she based her right to have an administrator appointed. Such a claim for rental could not have arisen on any theory except that of an implied contract, or open account, and therefore would be barred by the three-year statute of limitations defined in Section 2299 of the Mississippi Code of 1930.
Section 2298 of the Mississippi Code of 1930 reads as follows: "If a person entitled to bring any of the personal actions herein mentioned, or liable to any such action, shall die before the expiration of the time herein limited therefor, such action may be commenced by or against the executor or administrator of the deceased person, after the expiration of said time, and within one year after the death of such person."
Our court has specifically held that under the present statute in force since the Code of 1871 the only stay in the operation of the statute, at the death of a debtor, is the one-year stay provided in the foregoing section, and it is immaterial whether an administrator is or is not appointed.
Hughston v. Nail, 18 So. 920, 73 Miss. 284; Weir v. Monahan, 7 So. 291, 67 Miss. 434; Claus v. Moore, 27 So. 612, 77 Miss. 701; Duffy v. Kilroe, 76 So. 781, 116 Miss. 7.
The petitioner was estopped and precluded by her laches and her lack of vigilance and diligence in prosecuting her alleged right from coming into court at the late date selected by her and having an administrator appointed.
Griffith's Chan. Practice, Sec. 41, page 44; 21 C.J. 193; 19 Am. Jur. 334, sec. 481; Thornton v. City of Natchez, 129 Fed. 84, 63 C.C.A. 526; Cross v. Hedrick, 66 Miss. 61.
Chap. 262 of the Mississippi Laws of 1938 shows the the policy of the law and that that policy was violated by the action which was filed herein.
Chap. 262 of the Mississippi Laws of 1938 reveals that it is the policy of our law to recognize, encourage, and protect the handling of estates, without an administration, where this can be properly done. This act provides that in case no administration has been commenced on the estate of decedent within three years after his death, no creditor of the decedent shall be entitled to any claim whatever on any real property of the decedent, or the proceeds therefrom against purchasers or encumbrancers for value of the heirs of the decedent, unless such creditor shall, within three years and six months, from the date of the death of the decedent, file on the lis pendens docket in the office of the chancery clerk of the county in which said land is located notice of his claim, containing the name of the decedent, a brief statement of the nature, amount, and maturity date of his claim, and a description of the real property sought to be charged therewith. More than three years and six months had elapsed since the death of W.I. Hancock, and the record fails to reveal that any such notice, as required by the statute, to preserve the claim, was ever filed.
The petitioner, Mrs. Thella McClellan, was not a creditor and therefore she had no right to bring an action for the appointment of an administrator, and the court should have sustained the appellants' objection thereto.
15 C.J. 1370; Secs. 1669-1679, Code of 1930; Harris v. Hutcheson, 65 Miss. 9, 3 So. 34; Feld v. Borodofski, 87 Miss. 727, 40 Miss. 816; Hollis v. Bryan, 143 So. 689; Drainage District v. Evans, 136 Miss. 178, 99 So. 819.
It is the general rule of the authorities throughout the United States that an heir at law, or interested party, may object to and contest the appointment of an administrator.
The general constitutional jurisdiction given to courts of chancery in matters testamentary and of administration, under Section 159 of the Constitution, definitely clothes that court with the authority to hear, consider, and act upon all protests and objections of interested parties relative to the interlocutory appointment of administrators by the clerks of the court. There is nothing final about the action of the clerk in appointing an administrator.
Code of 1930, Secs. 339, 340-343; Kevey v. Johnson, 150 So. 532; 23 C.J. 1061.
Smallwood Darden, of New Albany, for appellee, Mrs. Thella McClellan.
After the expiration of thirty days from the death of a decedent the court may, in its discretion, appoint any suitable person as administrator. There is in our state a complete statutory plan for the settling of estates of decedent persons.
Sec. 1629, 1637, Miss. Code of 1930.
The purpose and policy of our law, as set forth by the statutory plan for the settlement of decedents' estates, is that there must be an administration of the estates of all decedents who left "real or personal property in this state."
An examination of the statutes will show, first, that the court is not limited to the appointment of a relative or a creditor, but may, under Section 1629 appoint "any other suitable person."
It is further the mandatory and unequivocal duty of the chancery court to appoint an administrator for any person who has "left property," for after the expiration of 60 days from the death of the decedent under Section 1637 of the Code, the county administrator takes over the administration of the estate, but if he should fail to do it, and if "some person will not qualify as executor or administrator," it is the further mandatory and imperative duty of the chancery court or the clerk in vacation to appoint the sheriff as administrator.
Sec. 1639, Miss. Code of 1930.
When those who have a prior right to the administration, which is given them by the statute, fail to take advantage of that right to administer on the estate, they know that it is within the discretion of the court to appoint someone else to do so.
Jordan v. Ball, 44 Miss. 194; 119 A.L.R. 147.
To permit appellants to proceed with the contest would be to require the claimant to try two lawsuits on the same claim.
This court has held that the question of the merits of the controversy between a creditor or claimant against a decedent's estate, and the estate of the decedent cannot be adjudicated, and has no place, in a contest of the appointment of the administrator, but that the question of the merits of the lawsuit can be determined only after the administrator is appointed and issue is joined between the claimant and the administrator on the claim.
Thompson v. Carter's Estate, 180 Miss. 104, 177 So. 356; 23 C.J. 1043.
The question of whether or not the statute of limitations has run on Mrs. McClellan's claim is one which is not properly before this court in this proceeding, but should be presented by the administrator when he is sued on the claim. But even if it should appear that the claim is barred, which it does not, because the claim will be for the wrongful taking and holding and the wrongful entry of the creditor's property, and, consequently, will come under Section 2292 of the Mississippi Code of 1930. Further, Section 2298 of the Code of 1930 does not mean that a person who had a cause of action accruing prior to the death of the decedent, must bring that action within one year after the death of the decedent, because Section 2298 is a savings statute, which is intended to extend any term fixed by the statute of limitations which would otherwise expire within one year after the decedent's death. In the present case the statute of limitations was not in its last year of operation at the time of the decedent's death, for he wrongfully entered the property on February 27, 1933, and he died on February 15, 1935.
Our court has expressly held in construing Section 2298 that it applies only where the year of the decedent's death is the last year of the running of a period of limitation.
Hambrick v. Jones, 64 Miss. 240, 8 So. 176.
But even if we are to say that apparently the statute has run, still that question does not prevent the administration in this case in the first place for the reason that the court had the right to appoint Mr. Pyle under the authority of Section 1629 whether there were any creditors or not, and in the second place, because "The mere fact that one's claim is apparently barred by the statute of limitations does not prevent him from obtaining administration as a creditor."
21 Am. Jur. 412, Sec. 69; Ann. Cas., 1915A, 56.
Whether the appellee, Mrs. McClellan, was guilty of laches is a question to be determined on the trial of her lawsuit against the administrator. It is not raised in the pleadings in this cause and it has no proper place here.
Hugh N. Clayton, of New Albany, for appellee, L.A. Pyle, Administrator.
I admit for the appellee that the question of jurisdiction may be raised at any time on appeal by counsel or by the court of its own motion. But, I most strongly insist that the authorities cited by him attacking the jurisdiction of the trial court should establish wherein the jurisdiction of the trial court was lacking and what jurisdictional facts are necessary or lacking to give or deprive the trial court of its jurisdiction. I most respectfully submit to the court that the authorities submitted and cited by Mr. Smith in his brief are not applicable to the present case and do not establish the fact that the chancery court of Union County did not have jurisdiction because the petition did not contain what the cases and law require to be the jurisdictional facts.
The second point argued by Mr. Smith in his brief is that the purported claim of Mrs. McClellan is barred by the statute of limitations. This defense was not presented to, considered, nor passed on by the trial court, and the rule announced in the case of Adams v. Union County, 177 Miss. 403, 170 So. 684, would apply, that it cannot be raised for the first time on appeal.
3 C.J. 709, par. 604; 4 C.J.S. 452, par. 1; Ransom v. Harroun, 147 Miss. 579, 113 So. 206.
Defendant cannot for the first time on appeal urge the laches of complainant in bringing or prosecuting the suit.
3 C.J. 710, par. 605; 4 C.J.S. 454.
The statute, Chapter 262 of the Laws of 1938, does not touch this case in any particular, since the statute deals with the procedure necessary to be taken by a creditor seeking to have a lien upon the real estate of a deceased person. The statute deals entirely with the real estate of deceased persons and the relation of creditors thereto. This case and this administration is concerned only and exclusively with the personal estate of W.I. Hancock, deceased. Therefore, the said Chapter 262 has no part in this law suit.
In re Miller Estates, 130 Wn. 199, 226 P. 492.
Not only is it the law that the appellants can argue only questions presented to the lower court and that they must adhere in the Supreme Court to the theory advanced in the lower court but Rule 6, paragraph 2 of the Supreme Court of Mississippi specifically requires that "no error not distinctly assigned shall be argued by counsel except upon the request of the court."
Therefore, the appellants are tied by their "contest" filed in the lower court and the assignment of error filed in this court. The assignment of error specifies only one alleged error, that the lower court erred in sustaining the demurrer of the appellees to the "contest" filed by the appellants. As said before, the "contest" only categorically denies the allegations in the petition of Mrs. McClellan for an administration and sets up as one affirmative defense only the fact that no lis pendens notice was filed. We have seen that the lis pendens notice applies only when the real estate of a deceased person is involved.
Therefore, the "contest" amounted only to a traverse of the allegations of the petition of Mrs. McClellan as to the relationship of creditor and debtor and asked that the court hear evidence and adjudicate whether or not the claim of Mrs. McClellan was a legitimate claim. To establish and confirm this theory of the appellants in the court below that the court should adjudicate and try the claim of Mrs. McClellan on their "contest" of the vacation acts of the chancery court, the record at page 23 shows that the appellants sought the privilege of introducing proof to show that Mrs. McClellan was not a creditor. It is absolutely clear that they have proceeded on one theory in the lower court, and recognizing now, because of the decision of Thompson v. Carter's Estate, 180 Miss. 104, 177 So. 356, that such theory and position is not legally sustainable, the appellants have executed an about-face, adopted a new theory and have assigned many reasons, for the first time in this court, why the action of the lower court was erroneous. This court has always disapproved such a policy, and I feel sure will continue so to do.
The petition of Mrs. McClellan was sufficient to give the chancery court jurisdiction.
Sec. 1629, Code of 1930.
There is no decision of our court in Mississippi saying what facts must be alleged in a petition for an administration which are sufficient to give a court jurisdiction of the cause and authority to appoint an administrator. However, the decisions of other states show that the petition in the instant case was more than sufficient to give the chancery court jurisdiction of the cause and authority to appoint an administrator.
Becket v. Selover, 7 Cal. 215, 68 Am. Dec. 237; Re Miller's Estate, 130 Wn. 199, 226 P. 492; Hilton v. Hopkins, 275 Mass. 59, 175 N.E. 162; Williams v. Hefner, 89 Mont. 361, 297 P. 492; In re Eklund's Estate, 174 Minn. 28, 218 N.W. 235; 23 C.J. 1058, Sec. 154; Johnson v. Johnson, 66 Mich. 525, 33 N.W. 413.
The court was correct in sustaining the demurrer of the appellees.
Argued orally by Fred B. Smith, for appellant, and by Hugh N. Clayton, for appellee.
On February 16, 1939, Mrs. Thelma McClellan filed a petition in the Chancery Court of Union County, in which it was alleged that W.I. Hancock died at his residence in said county on February 15, 1935; that he left certain real and personal property; that there had been no administration on his estate; and, further, that on or about the first day of March, 1933, the said W.I. Hancock, under a purported foreclosure of a deed of trust, entered into possession of certain lands in Union county, Mississippi — describing the lands. It was alleged that the purported foreclosure sale was made on February 27, 1933, that it was invalid, void and of no effect; and that the petitioner desires to bring an action to have the foreclosure sale set aside, she being the owner of the said property. The petitioner, the said Mrs. Thelma McClellan, alleges that she is a creditor of the estate of W.I. Hancock, in the amount of rent owing to her by Hancock from and after the first day of March, 1933, until the date of his death, for the reason that he occupied said property, and enjoyed the rents and profits therefrom during that period of time.
The petitioner further alleged that administration of the estate was necessary; and that L.A. Pyle was over twenty-one years of age, of sound mind, and had never been convicted of a felony, nor was he under any other legal disability; and that he was a suitable and proper person to administer the estate of said W.I. Hancock.
On the 16th day of February, 1939, the Chancery Clerk, in vacation, appointed Pyle administrator of the estate of W.I. Hancock.
Among other things alleged in the contest, it was averred that Mrs. McClellan, the petitioner for the appointment of an administrator, was not a creditor of the estate of W.I. Hancock. There were other immaterial allegations in defense of the purported claim, and in opposition thereto.
On the hearing of the contest in the court below, a demurrer thereto was sustained, and the action of the Clerk, and his order appointing the administrator herein, was approved.
Among other allegations of the contest, it was said that the heirs-at-law, upon the death of Hancock, had agreed upon a settlement of the estate, appointing one of their number to act as their attorney in paying claims against the estate; that the administration of the estate, thus agreed upon by the heirs, all of whom were adults had been about completed; and some of the heirs had been given possession of their property.
We are of the opinion that it has always been the rule in this state that one who petitions for the appointment of an administrator of the estate of a decedent must be a creditor, legatee or distributee of such estate. See Calvin Miller v. John H. Keith, 26 Miss. 166. One who petitions as creditor of a decedent's estate, for appointment of an administrator of such estate, must prima facie show that he is a creditor. See Thompson v. Carter's Estate, 180 Miss. 104, 177 So. 356.
Where an administration is entirely unnecessary, the heirs-at-law and distributees of the estate, directly interested therein, and from whose estates the cost must be paid, have a right to interpose an objection to the appointment of an administrator, although in so doing they have no right to litigate the deal with one who asserts that he is a creditor. The question was whether or not prima facie Mrs. McClellan was a creditor of the decedent, Hancock. When a prima facie case is made by the creditor, it then becomes the duty of the Chancery Court to appoint an administrator, and the defenses to the alleged debt, or the litigation of the indebtedness, are matters to be determined in the court of the administration. See Thompson v. Carter's Est., supra.
We do not think there is here involved the question of the jurisdiction of the Chancery Court to appoint an administrator of a decedent's estate. Mrs. McClellan alleged in her petition that she was a creditor; but she further alleged that the decedent, Hancock, had gone into possession of her land under a void foreclosure proceeding; and the alleged debt exists, or does not exist, depending upon whether or not the foreclosure sale, of which she complains, is void. We think that a general allegation that a foreclosure sale is void is of no legal effect — is nothing more than an allegation of legal conclusion drawn by the pleader. Such allegation was insufficient to establish that a debt existed on account thereof. If the foreclosure sale was valid, then Mrs. McClellan was not a creditor of Hancock's estate, was an entire stranger to the record, and not entitled to have the estate administered over the objection of the heirs-at-law.
We think it was the duty of the Chancellor, in view of the allegation in the contest filed by the heirs, that Mrs. McClellan's petition for letter of administration was not in the capacity of a creditor of Hancock's estate, to have inquired into that issue, and to have required the petitioner to show that prima facie she was a creditor of the estate. If she made this showing, then that contest was ended, and an administrator should be appointed. If she could not make this showing, then there should not have been an administration of the estate over the protests of the heirs and distributees of the estate. The question of the statute of limitations, and other questions attacking the validity of the debt, were not properly triable on the issue of whether or not Mrs. McClellan was a creditor of the estate of Hancock deceased, with a right to have an administration of the estate.
On this very narrow issue the case is reversed and remanded for further proceedings by the Chancery Court, in conformity herewith.
Reversed and remanded.