Opinion
June 13, 1949.
1. Executors and administrators — widow's allowance for year's support — appeal by administrator.
Where there is no issue as to the status of the widow of an intestate decedent, as the widow, her statutory right to an allowance for a year's support is absolute whatever may be the condition of the estate, and is a matter with which the administrator has no justifiable concern, and about which he is without right to appeal, especially so when the amount allowed by the chancellor was less than that recommended by the appraisers.
Headnote as approved by Alexander, J.
APPEAL from the chancery court of Lauderdale County, THOMAS Y. MINNIECE, Chancellor.
L.J. Broadway, for motion.
The administrator is not a party in any legal sense to the proceedings for the allowance to the widow and therefore has not standing or right to appeal, and has not legal interest to be protected and is not aggrieved by the decree making the allowance.
In the case of Morgan v. Morgan, 36 Miss. 348, the appraisers had not set apart the widow's provision or made the allowance to her, and she petitioned the probate court therefor; commissioners were appointed and they made the allotment to her, it was confirmed, but the administrator refused to pay over the money. This was all ex parte, the administrator not being made a party thereto. Upon the filing of her petition to require him to pay over the sum allotted, the administrator appeared and moved the court to set aside the order of allowance on the ground that it was made without citation or notice to him, the motion was granted and the petition dismissed. Upon appeal by the widow, the High Court of Errors and Appeals, used this language: "The statutes upon the subject of the year's allowance to the widow manifestly contemplate that formal proceedings shall not be necessary in obtaining the allowance. None of the statutes make any provision for notice of the proceeding to the administrator; and the Act of 1852, Chapter 226, provides that no petition to the court for the purpose shall be required. The allowance is a right, to which the widow is entitled under the statutes, to be paid out of the funds or property in the hands of the administrator, at all events, and whatever may be the condition of the estate, whether solvent or insolvent, testate or intestate. It is only necessary that the amount and value of the estate, and the circumstances and condition of the widow and children, should be taken into consideration, in making the allowance; and where the amount of the estate is shown, it is a matter with which the administrator has no concern. Hence, the statute authorizes the allotment to be made without direct proceeding for that purpose, and by the persons who appraise the estate. The reasons for this are twofold: first, that it may be made with reference to the amount and value of the estate; and secondly, that it may be made without formality of proceeding for the purpose, and promptly, so as to answer the necessities of the widow and children, which are presumed to be immediate, and to arise from her helpless condition. It is manifest, that opposition to the allowance by the administrator is not contemplated by the statute, and should not be tolerated; for such a course would tend to defeat the beneficial purpose of the statute — which is to give relief to persons whose helpless condition requires immediate means of support — by litigation and delay, depriving the parties of the humane provisions of the law at the very time when they stood most in need of it.
We, therefore, think that the administrator was not a proper party to the proceeding for the widow's allowance, and was not entitled to notice of it."
It will be noticed that the petition in the case at bar did not make him a party, did not ask or pray for the issuance of a citation or a summons to him, and none was issued. He officiously intermeddled and was permitted to do so by the court, and to contest with the widow over the allowance, after failing and refusing over all the months theretofore to do anything about paying it, until the estate had dwindled so low that the $1800.00 allowed her could not be paid, and the court could allow only $1000.00; and now the administrator is permitted to add insult to injury, and compound that, by appealing with supersedeas, when all the while "it was a matter with which the administrator had no concern." The administrator should indeed consider himself fortunate that he does not have a decree against him and his bondsmen for the additional $800.00, to make up the sum of $1800.00 allowed the widow by the appraisers.
In the recent case of Westbrook v. Shotts, 200 Miss. 456, 27 So.2d 683, in reference to the nature of this allowance, this court said: "Her right thereto is absolute, Code 1942 Secs. 561, 564, and ought not to be involved in issues raised by claims of the administrator against her. Prentiss v. Turner, 170 Miss. 496, 155 So. 214; Pratt v. Pratt, 155 Miss. 237, 124 So. 323."
It is elementary or hornbook law that only persons who are parties to proceedings have any right to appeal from orders, decrees and judgments rendered therein. Prentiss v. Beasley, 13 SM (21 Miss.) 97; Starling Smith Co. v. Flash, 16 So. 875; Flurnoy v. Smith, 3 How. (4 Miss.) 62; Farmers Merchants Bank v. Rushing, 175 Miss. 826, 167 So. 784; Hunter v. Stanford, 198 Miss. 299, 22 So.2d 166 and here the court holds the administrator is not even a proper party, and that the allowance is a matter with which he has no concern.
C.M. Wright, contra.
Let it be understood that this administrator is not concerned with who gets this money. This administrator is only interested in this matter in protecting himself against a later attempt to surcharge the estate and falsify the account, when finally filed, to the extent of any allowance made upon an ex parte petition, in the event the court should later hold that such widows allowance is not properly allowed by the court, that is, without authority of law.
In the case of Townsend v. Beavers, 185 Miss. 312, 188 So. 1, 189 So. 90, this court held: "The administrator contends, however, that the three notes were paid by him after an order of the court so to do, and that such order ought to protect him even as against these of the heirs who were not at those meetings and who therefore did not consent. The order was obtained on an ex parte petition . . . The orders made by the court on the ad interim ex parte petitions of the administrator for the payments do not protect him against exceptions to his final account, save only as to those heirs or distributees expressly consenting at or about the time the payments were made."
This administrator finds himself in the position of being directed to pay money upon an ex parte petition, which, if he pays, he might be required to pay a second time, upon the falsification of his final account by the interested heirs, not now parties to this proceeding. It is horn-book law, therefore, that he has such an interest as to permit him to obtain a final adjudication of his right in this connection to make the payment, in order to protect himself from a later payment of the same amount to persons who are not bound by this proceeding, because not parties thereto.
Mrs. Woody is the widow of George W. Woody, who died intestate. The bulk of his estate consists of the proceeds of a life insurance policy payable to his estate of the face value of $5,000. The appraisers set apart to the widow an allowance of $1,800 payable in twelve monthly instalments of $150. None of these payments were made.
The widow filed her petition for the award of "such allowance as in view of the premises may be meet and proper". The administrator filed an answer thereto contesting such allowance. It was agreed that the petitioner is the widow of the intestate and there is no showing otherwise than that he was liable for her support. It is agreed that there is a balance in the estate of $1,357.56 and it appears that the fees of the administrator and counsel have been paid. The Court decreed an allowance of $1,000, and from this interlocutory decree allowed an appeal. The cause comes to us upon motion of appellee to dismiss the appeal.
The application of the widow was ex parte. There is not involved an issue as to her status as a widow entitled to the year's allowance under Code 1942, Sections 561, 564. The right to such allowance is absolute. Westbrook v. Shotts, 200 Miss. 456, 27 So.2d 683.
Without discussing the improvidence of an appeal, the allowance thereof was not stated to be "in order to settle all the controlling principles involved in the cause". Code 1942, Section 1148. Yet if such purpose was implicit in the order, Hardy v. Candelain, Miss., 37 So.2d 360, would be in point.
We sustain the motion however upon the ground that there is no justiciable issue here between the appellee and the administrator. The allowance was a matter of right "Whatever may be the condition of the estate", and the application therefor was "a matter with which the administrator has no concern". Morgan v Morgan, 36 Miss. 348. See also Prentiss v. Turner, 170 Miss. 496, 155 So. 214; Pratt v. Pratt, 155 Miss. 237, 124 So. 323.
We would not be understood to hold that there are no cases involving a widow's allowance in which the executor or personal representative may appear as a party. Such cases include Byars v. Gholson, 147 Miss. 460, 112 So. 578, where the issue was whether the wife had been living apart from her husband by her fault; Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371, where the adversary parties included legatees under the will; Vaughan v. Vaughan, 195 Miss. 463, 16 So.2d 23, where the executor was joined as a party by another who claimed to be the widow of deceased; Moseley v. Harper, 202 Miss. 442, 32 So.2d 192, where the appeal was by the widow; Stringer v. Arrington, 202 Miss. 798, 32 So.2d 879, where the issue was similar to that in Byars v. Gholson, supra.
The amount of the allowance was in the discretion of the Chancellor whose award was $800 less than that recommended by the appraisers. We are of the opinion that the administrator, as such, was without right to prosecute an appeal.
Appeal dismissed.