Summary
In Kevey v. Johnson, 167 Miss. 775, 150 So. 532, this Court held that the statute in giving preference to the husband or wife created a privilege in his favor which would be lost as a statutory right by his failure to apply for letters within the thirty day period.
Summary of this case from Moore, Admr., Etc. v. RoeckerOpinion
No. 30777.
October 30, 1933.
1. EXECUTORS AND ADMINISTRATORS.
Issue as to necessity for administration could be raised only in administration proceeding and not collaterally after that proceeding has been carried forward to final report and final decree thereon.
2. EXECUTORS AND ADMINISTRATORS.
Appointment of one other than husband of deceased as administrator within thirty-day period is not void, but appointee is subject to removal on husband's application within thirty days, provided husband is fit person for appointment (Code 1930, section 1629).
3. EXECUTORS AND ADMINISTRATORS.
Sister of deceased appointed as administratrix held entitled to have administration expenses fixed as charge on real property inherited by husband who did not apply for appointment as administrator within thirty-day period (Code 1930, section 1629).
APPEAL from the Chancery Court of Warren County.
Albert M. Bonelli, of Vicksburg, for appellant.
The appellant contends that the decree of the probate court entered in the estate matter cannot be impeached and attacked collaterally.
Under our constitution the chancery court has general jurisdiction of probate matters. In this it is not a court of limited jurisdiction.
Ames v. Williams, 72 Miss. 760, 17 So. 762.
The appointment of an administrator who has not the necessary qualification is not absolutely void, but only voidable, and the acts of the de facto administrator acting under an appointment of the court is valid to the same extent as the act of a qualified administrator. He is subject to removal, but acts performed between the appointment and the removal are valid, unless they are subject to attack for some matter which would defeat the act of the administrator if he were qualified lawfully to act.
Giglio v. Woollard, 126 Miss. 6, 88 So. 401.
It is true that section 1629, Code of 1930, gives a priority first to the surviving spouse, and so on down the line of proximity of relationship ending up with this right being given after thirty days to a creditor or other suitable person in the event that no relation applies within the thirty-day period. But this right of a relative to first obtain the appointment is personal, and if he wants it he should apply for it in thirty days and unless he makes his application within thirty days he cannot find fault with any other appointment on the score of his nearer relationship with the intestate.
Muirhead v. Muirhead, 6 S. M. 451, 454; 11 R.C.L., Executors Administrators, par. 84, chapter headed "Effect of Grant of Letters to Wrong Person;" Ames v. Williams, 72 Miss. 760, 17 So. 762.
This appellant contends that the real estate of this estate must bear its burden of the costs, fees and expenses of its administration and devolution.
Sec. 1643, Code of 1930.
Henry Lawrence, of Vicksburg, for appellee.
Section 1629 of the Code of 1930 provides that the court shall grant letters of administration to the relative who may apply, preferring first the husband or wife and then such others as may be next entitled to distribution. In this case the husband was not permitted to apply for letters of administration on the estate of his deceased wife, Eliza Johnson. The record discloses that his wife died on the 9th day of June, 1931, and that the sister of his wife applied for letters of administration, and that the same were granted to her on the 12th day of June, 1931, thus making only three (3) days to elapse between the death of appellee's wife and the day of the issuance of letters of administration.
The record discloses that the appellee never consented nor requested the appellant to become the administratrix of his wife's estate; that she assumed such responsibility on her own accord, and such expense of administration should be borne by her, and she should be required to pay the counsel fees therein.
Argued orally by A.M. Bonelli, for appellant.
Three days after the death of the intestate, her sister, appellant here, applied for, and was granted, letters of administration on the estate. The administration was conducted in the manner provided by law, and in due time was brought to a conclusion by a final account and final decree. In the final decree the court allowed a solicitor's fee, which the administratrix was directed to pay, and also the costs. There not being any remaining personal property to pay the administration expenses aforesaid, appellant sought to have same fixed as a charge upon the real property of appellee, inherited by him as the husband of decedent and as her sole heir.
In reply to that demand, appellee, the husband, contended that the appointment of appellant was void for two reasons: First, because the appointment of appellant, the sister, was made within the thirty days, during which period the statute, section 1629, Code 1930, gave preference to appellee, the husband, in respect to the appointment as administrator; and, second, because the administration was wholly unnecessary.
As to the second contention, it is enough to say that the issue of necessity could be raised only in the administration proceeding, and not collaterally after that proceeding has been carried forward to a final report and a final decree thereon, as is the case here. And, on the first contention, the answer must be that the statute, in giving preference to the husband, created a privilege in his favor which would be lost as a statutory right by his failure to apply for the letters within the thirty-day period. Muirhead v. Muirhead, 6 Smedes M. 451, 454. The appointment of another within the stated period is not void, but the appointee is subject to removal, upon the husband's application within the thirty days, provided, of course, the husband is a fit person for the appointment. See Giglio v. Woollard, 126 Miss. 6, 15, 88 So. 401, 14 A.L.R. 616; Ames v. Williams, 72 Miss. 760, 17 So. 762; 11 R.C.L., p. 86; 23 C.J., p. 1033; Fridley v. Farmers' Mechanics' Sav. Bank (Re Price), 136 Minn. 333, 162 N.W. 454, L.R.A. 1917E, 544.
It is not necessary for us to express any opinion as to what would be the rights, if any, of the husband in an application by him for appointment after the elapse of thirty days, another person having been theretofore appointed, for in this case the husband failed not only to apply within the thirty days, but in fact he did not seek to be substituted as administrator after the thirty-day period. He raised no question about the administration proceeding until after it had been concluded by a final report and a final decree thereon. Moreover, he denied at the time that the decedent was his wife, and did not take an attitude to the contrary of that denial until the administration was concluded, and until he found it necessary in order to establish his title to the real estate that he should be declared to be the husband, whereupon he took the position that he was the common-law husband of the decedent and succeeded in proving that fact.
There was no invalidity in the administration proceedings, and we do not think the chancellor intended to so hold. We think what he was endeavoring to do was to adjust the equities between these parties on account of the previous replevin litigation between them, and particularly in regard to the bearing which that litigation may have had in the matter of the allowance of the solicitor's fee in the final administration decree. However, the chancellor did not so state in an opinion or in his decree in the case now at hand, and we are left to apply only what we find in the remainder of the record. So doing we direct that the chancellor will credit the administratrix with the administration attorney's fees, plus the other court costs of the administration, plus the sixty dollars' probated claim paid by the administratrix, and from this aggregate deduct seventy-five dollars for the piano which the administratrix received from the estate, and decree the balance as a charge upon the said land of appellee. The costs of this appeal and of this case in the trial court are directed to be divided equally between the parties.
Reversed and remanded, with directions.