Opinion
April 11, 1949.
1. Courts — jurisdiction.
A court may not reject jurisdiction and at the same time exercise it.
2. Executors and administrators — petition by co-administrator, when considered as by next friend.
When a party acting as co-administrator of the estate of a decedent has filed a petition as co-administrator to set aside a release or a conveyance of estate property made by the next of kin of the intestate on the allegation that said next of kin and sole heir was not mentally competent at the time, the court may look to the purpose and substance of the petition, and seeing that it was wholly for the benefit of the next of kin of the intestate, may disregard the character or capacity by which the petitioner has entitled himself, and may entertain the petition as one by next friend.
3. Contracts — mental capacity — effect of chancellor's finding.
Where there is substantial and competent testimony to the effect that a party, whose mental capacity has been challenged, was capable of understanding and did understand at the time what she did, the decree of the chancellor denying cancellation will not be reversed although there was other testimony that the party was not mentally competent to carry on business matters.
Headnotes as approved by Smith, J.
APPEAL from the chancery court of Jones County, ROY P. NOBLE, Chancellor.
Collins Collins, for appellant.
If the court should hold that Wesley McCullum was not a co-administrator in law or de jure, he was at least an administrator de facto. See Yates v. Clark, et al., 56 Miss. 212. In the case of Giglio v. Woollard, 88 So. 401, the court says, "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 said administrator if he were qualified lawfully to act." See also Wimberly v. Boland, 16 So. 905; Davis v. Miller, 17 So. 323.
Again, if Wesley McCullum was not a co-administrator and could not file this petition as co-administrator, he was put into the case by order of the court to represent the interests of Nancy McNair Moss. The original petition of Nancy McNair Moss, the petition filed by her in her own proper person was never answered by Sandy Gavin and was never acted upon by the court until the court on final application of Sandy Gavin to close the administration and give him all the property. If this action was illegal because of fraud, as alleged, the court had a right to go into it even upon the suggestion of any one for her that there was fraud on her, since she had become mentally incompetent.
So we respectfully submit that the court erred in dismissing the cause because of want of jurisdiction of the parties. Sections 45, 127, Griffith's Chancery Practice.
If the chancellor had ruled that the petition was properly filed by Wesley McCullum, we say that the chancellor was wrong on the question of purchase by the administrator.
The burden was on the administrator, Sandy Gavin, to show that the purchases were made in the utmost good faith and without any fraud, and for adequate consideration. Did he do it?
The record shows that his first act was to file his petition to remove Wesley McCullum as co-administrator. Why did he do that? So that he could handle it alone without any representative of Nancy McNair Moss to watch over his acts. Why was no order ever taken on removal petition? He was afraid the court would refuse to remove him. So, Gavin immediately goes out and buys all the parts claimed by other heirs, so that he could send his emissaries to Nancy McNair Moss, now incompetent and without any notice to Wesley McCullum, and get her release. One Thousand ($1,000.00) Dollars and a life estate for an old woman over 70 years of age in a house and lot in Laurel, Mississippi, which house according to the testimony was uninhabitable, dilapidated, and in need of general repairs. The testimony shows this was valueless. The testimony shows the old woman was not capable of understanding all this. It was a fraud. One Thousand ($1,000.00) Dollars in an estate valued at more than Seven Thousand ($7,000.00) Dollars or personal property and some real estate for the right of the sole heir therein. The burden was on Gavin to show adequate consideration and utmost good faith. He didn't do it.
Deavours Hilbun, for appellee.
Unless an administrator has qualified as such, he has no right to institute an action in his name as administrator. Here we are able to cite an early decision of the Mississippi Supreme Court, Ligon v. Bishop, et al., Executors, 43 Miss. 527, (1870). There the court held that in all actions by an administrator profert of the letters giving the plaintiff his official character should be made with the declaration, and the failure to do so is fatal on demurrer. And referring to Corpus Juris, Volume 23, page 1180, Section 399, it will be seen that it is a general rule that neither an executor nor an administrator can sue or be sued either at law or in equity until he has been duly qualified.
Appellant contends that if the court should hold that Wesley McCullum was not a co-administrator in law, or de jure, he was at least an administrator de facto and cites in support thereof the cases of Yates v. Clark, et al., 56 Miss. 212; Wimberly v. Boland, 16 So. 905; Davis v. Miller, 17 So. 323; Giglio v. Woolward, 88 So. 401. These cases have no application to the case at bar, and are easily distinguishable.
In addition, the cases have no application because Wesley McCullum in this proceeding is not a de facto officer within the meaning of the law. A de facto officer is one who is actually one in fact and in deed, 18 C.J. 453, and the cases cited all involve acts taken by a de facto officer in the past, being collaterally attacked after they have been performed where the rights of other parties have intervened.
Attention of this court is directed to the fact that there was nothing surreptitious about the manner in which Sandy Gavin approached Nancy McNair Moss with respect to this settlement. He secured Mr. E.H. Hyde, a prominent druggist and citizen of Poplarville to act as a notary public in the execution of the instrument. Mr. Hyde knew none of the parties and had absolutely no interest in the matter. It might be noted at this point that Mr. Hyde is the only person who testified in this case, who was present at the time the instrument was executed and who had not the slightest connection with any of the parties to the case. Mr. Hyde testified that he read the instrument to Nancy McNair Moss twice and that, even then, Sandy Gavin asked him to read it a third time to be sure that Nancy understood its import. In addition Mr. Hyde explained the effect of the instrument to Nancy and, in his opinion, she understood it. As stated above, Mr. Hyde is a prominent druggist with no interest in the case. He was a white man among several colored people and not only testified that she understood the effect of the instrument but that in his opinion on that day was fully competent. Further, while he is a druggist and a professional man who is accustomed to prescribing for sick people and likely to observe physical infirmities, he saw absolutely no evidence of impairment in the speech or action alleged to have afflicted Nancy. Attention is directed to this fact, not only for the purpose of showing that she was competent at the time of the execution of this instrument, but as evidence of the fact that, apparently Nancy had not, upon the date of the execution of this instrument, suffered the stroke to which Dr. Cowart later testified, he not being sure of the date upon which it occurred.
Pete Christian, a prominent undertaker in the City of Laurel and one of Laurel's most respected colored citizens, next testified that he was present at the execution of this instrument. He noticed no hinderance in her voice, saw no sign of a partial stroke and testified that she looked all right to him. He heard her discuss the settlement of the matter and express her satisfaction with it. He heard Mr. Hyde read the instrument to her three times and heard him explain it to Nancy. He testified that she knew what she was doing on that day.
In addition, we should like to point out this all important fact. Dr Cowart stated that the only example of Nancy's lack of understanding was her forgetfulness in connection with making out her insurance blanks. Surely, the fact that a person has difficulty in understanding the ordinary blanks provided by insurance companies is no sign of mental deficiency. But the important thing is that Dr. Cowart, under close questioning, admitted that Nancy was capable, even after her stroke, of understanding things when they were explained to her. Thus, by the testimony of the appellant, it is clear that Nancy was fully capable of understanding the import of her actions when transactions were explained to her and we have the uncontradicted testimony of the appellee to the effect that this transaction was fully explained to Nancy by Mr. Hyde and that she understood the same. As this court has repeatedly held, in order for it to reverse the chancellor's finding of fact, it must determine that he is manifestly wrong and we submit that the testimony referred to above proves that the chancellor was manifestly right, rather than manifestly wrong.
The contest before us grew out of an alleged agreed settlement between Nancy McNair Moss, claiming to be an aunt of intestate Ada Bridges, and Sandy Gavin, apparently a cousin of the intestate. Nancy claimed the whole estate on the ground that she was the next of kin, and that Gavin was not entitled to inherit since he was too remotely related to the decedent, in view of her nearer kinship.
After various skirmishes in the progress of the administration of the Bridges' estate, by an agreed order, the nephew of Nancy McNair Moss was appointed by decree of the court to be co-administrator with Gavin; and without letters of administration, bond, or having taken the oath, he was recognized by the court and all concerned as co-administrator, and functioned as such.
Gavin later proceeded to buy all of the interests of all of the heirs in the estate, including the claim of Nancy McNair Moss. Thereafter, in lieu of a final account as administrator, he filed a petition asking to be discharged. Wesley McCullum was never discharged and never sought a discharge, although Gavin filed a motion to suspend his authority because he had never made bond, etc. This motion was not acted upon. The terms of the settlement between Gavin and Nancy McNair Moss were that he pay her $1,000 cash and execute a deed to a life estate in a two-story residence in the Negro quarters of the community. In consideration thereof she was to release to Gavin all claims to rights in the Bridges' estate. These things were accordingly done. The Bridges' estate consisted of approximately $7,000 in personal property and some real estate. The lower court never did determine the issue of the relationship of Gavin and Nancy, respectively, to the decedent, Ada Bridges.
In this situation, Wesley McCullum, describing himself as co-administrator, and upon the premise that he had been appointed to look after and represent especially the interests of Nancy McNair Moss, filed the present proceeding in the administration, praying for a cancellation of the foregoing settlement on the ground that Nancy was incompetent mentally to make it or agree to it, and that it was improvident and fraudulent. The amount of $1,000 and the deed from Gavin to Nancy conveying to her for life the real estate aforementioned were deposited with the clerk of the court to await the outcome of the litigation of this issue.
The learned chancellor heard the evidence with reference to the prayer of the petition thus filed by Wesley McCullum on behalf of Nancy McNair Moss, and on conflicting testimony upheld the agreement, and refused to cancel the settlement. In this conclusion, we think the chancellor was correct, but we cannot confirm his concurrent action in dismissing the petition filed by Wesley McCullum for Nancy McNair Moss on the ground that he was without jurisdiction to hear the petition by Wesley McCullum as co-administrator. (Hn 1) The court cannot reject and exercise jurisdiction at the same time.
(Hn 2) It is not here a matter so much of jurisdiction, as we see it, but a matter of parties. The court had jurisdiction, and it is unimportant whether Wesley McCullum called himself co-administrator or not, since we look to the substance and not to the form of this pleading, and its patent purpose. Manifestly, its purpose was to seek for Nancy McNair Moss relief from what was considered an improvident and fraudulent compromise of her claim again the estate of Ada Bridges, assented to by her while incompetent. It was filed in the nature of the functions of a next friend to Nancy. If the court were without jurisdiction to consider this petition, then it was without jurisdiction to uphold and approve the settlement. In the case of Martin v. De Jarnette, 185 Miss. 76, 187 So. 202, the lower court refused to permit a next friend to represent an alleged non compos mentis because there had been no adjudication of the incompetency, but permitted an attorney to perform the same functions as a next friend would perform. The Supreme Court held that it was harmless error to refuse representation by next friend because the same duties were performed by the attorney. So, in this case, it seems to us that it is not necessary for us to decide the issue as to the status of Wesley McCullum as a co-administrator; and we do not decide it, since whatever he may have called himself, what he did was to perform the functions of a next friend to his alleged non compos mentis aunt. In the case of Union Chevrolet Company v. Arrington, 162 Miss. 816, 138 So. 593, a guardian attempted to compromise a claim for a ward and the court granted the petition to that effect, but we held it did so without sufficient information of all the facts most favorable to the ward. Afterward, when a next friend for the ward sued the Union Chevrolet Company on the same claim and the defendant interposed a defense of settlement, we affirmed a judgment for the minor recovered by the next friend. In other words, it is the substance of the purpose sought for an incompetent or a minor that concerns the court. We repeat that in our judgment the purpose of this petition by Wesley McCullum, although in his name as co-administrator, was, as shown on its face, and as developed in the proof, wholly for the benefit of Nancy McNair Moss, and, therefore, his real character therein was that of next friend.
Therefore, we hold that the court was in error in dismissing the petition because of lack of jurisdiction. The court, however, did hear all of the conflicting evidence introduced by both parties, dealing with the issues raised by the petition.
(Hn 3) With reference to the proof as to Nancy's competency, or incompetence, in making the settlement with Gavin, supra, her family physician, who was not a psychiatrist, testified that she had a stroke of paralysis which affected her mind, at the time of the agreement, to the extent that she could not carry on business matters, but on cross-examination stated that she could adequately understand anything explained to her. Her daughter, Ola, testified to the same effect. A very prominent white druggist of fine reputation acted as notary public in the execution of the papers involved in the compromise settlement, and stated that she was mentally capable of understanding and did understand what she did on the occasion of the actual execution of the papers. He read them over to her twice, and explained to her that if she made the settlement it would eliminate her entirely from the estate as to any interest therein. Gavin then suggested that he re-read them to her, stating that he did not want to take advantage of her and wanted her to understand. Again, the notary read the papers to Nancy, and, again, explained them to her. A colored undertaker of the community was present as a witness and corroborated this testimony, stating that Nancy not only understood what she was doing, but was glad to make the settlement. The settlement was approved by her attorneys representing her at that time, who, according to the record, to which the court made reference in his opinion recorded in the transcript, joined Nancy in effectuating the settlement. We think that the chancellor was correct in his decision on the evidence. He decided on conflicting testimony, and we cannot say that he was manifestly wrong. Therefore, we affirm the decree of the lower court dismissing the petition filed by Wesley McCullum on behalf of Nancy McNair Moss on the merits. The court further ordered that the $1,000, and deed from Gavin, be deposited with the clerk, as stated supra, be returned to Nancy McNair Moss, all of which we consider to have been proper. But we modify the decree only so far as to reinstate the petition itself as being cognizable by the court, in view of what we have written above.
In passing, it is intimated in this record that one of the witnesses is a half brother to the intestate, Ada Bridges. If this be true, it could develop that Nancy McNair Moss made a fortunate settlement, indeed.
Affirmed, as modified.