Opinion
No. 41258.
October 26, 1959.
1. Appearance — process — executors and administrators — removal of executor and appointment of temporary administrator — executor waived service of process.
Where no process was issued or served on executor whose removal was sought by widow who renounced her husband's will and filed petitions for allowance of one year's support and for appointment of temporary administrator, but executor had attended the hearing on the petitions and had objected thereto on other grounds than lack of process, had joined issue and had participated in the hearing, executor's participation in the hearing and taking issue constituted waiver of service of process.
2. Executors and administrators — appointment of temporary administrator — Chancellor's action should not be reversed in absence of abuse of discretion.
Under provision of statute giving Chancellor on the petition of any interested person the discretionary power to appoint a temporary administrator if it shall appear a necessity for the preservation of the rights of parties, Chancellor had wide discretion to appoint temporary administrator without having to find that the executor named in the will is disqualified or has been guilty of misconduct in office, and Chancellor's action in such manner should not be reversed unless there is clear evidence of abuse of discretion. Secs. 520, 536, Code 1942.
3. Executors and administrators — temporary administrator — removal of executor during pendency of will contest not permanent.
A decree issued for the appointment of temporary administrator under provision of statute, vesting Chancellor with discretion to appoint this type of administrator, means that the executor of estate under the will must be removed during the pendency of the will contest in order to permit the appointed temporary administrator to perform his duties pending the outcome of the contest, but is not construed as permanently removing the executor, since executors may only be removed under pertinent provision of statute which requires that such removal should be based on disqualification or improper conduct in office of executor. Secs. 520, 536, Code 1942.
4. Executors and administrators — widow's allowance — allowance proper in absence of abuse of discretion.
The allowance by Chancellor of one year's support to widow who renounced the will of her husband, by virtue of provision of statute providing for such allowance, was, in the absence of abuse of discretion, proper. Sec. 561, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Chancery Court of Hinds County; S.V. ROBERTSON, JR., Chancellor.
Wm. Harold Cox, Jackson, for appellant.
I. The lower court lacked jurisdiction of appellant and lacked the power and authority to hear this petition for the appointment of a temporary administrator without legal process thereon first served on appellant affording him his day in court; and lacked the consequent power and authority to remove appellant and appoint a temporary administrator in such summary proceedings. American Casualty Co. v. Kincase, 219 Miss. 653, 69 So.2d 820; Cherry v. Bivens, 185 Miss. 329, 187 So. 525; Rice v. McMullen, 207 Miss. 706, 43 So.2d 195; Savannah Special Consolidated School District, 208 Miss. 460, 44 So.2d 545; Sec. 536, Code 1942.
II. No cause existed for the removal of the executor and the Court lacked the power and authority to appoint a temporary administrator under the circumstances in this case. Burnside, Sim, Estate of (Miss.), 85 So.2d 817; Ricks v. Johnson, 134 Miss. 676, 99 So. 142; Watson, Executor v. Caffery, 236 Miss. 223, 109 So.2d 862; Wells v. Boatner, 216 Miss. 108, 61 So.2d 662; Secs. 517, 518, 520, 538, Code 1942; 33 C.J.S., pp. 1018, 1031, 1036, 1937, 1040, 1041.
III. The widow's allowance in the amount of twenty-five hundred dollars ($2500.00) in this case is grossly excessive. Mosley v. Harper, 202 Miss. 442, 32 So.2d 192; Secs. 1147, 1151, 1209, Code 1942; 21 Am. Jur. 562.
Pierce Waller, Jackson, for appellee.
I. Reply to appellant's Point I. Davis v. Patty, 42 Miss. 509; Hathcock v. Owen, 44 Miss. 803; Hiermann v. Strickland, 60 Miss. 235; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 240.
II. Reply to appellant's Point II. Burnside, Sim, Estate of (Miss.), 85 So.2d 817; Watson v. Caffery, 236 Miss. 223, 109 So.2d 862; Sec. 520, Code 1942.
III. Reply to appellant's Point III. Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371; Harwell v. Woody, 206 Miss. 863, 41 So.2d 35; McNulty v. Lewis, 8 Sm. M. 520; Morgan v. Morgan, 36 Miss. 348; Prentiss v. Turner, 170 Miss. 496, 155 So. 214; Turner v. Turner, 30 Miss. 428; Westbrook v. Shotts, 200 Miss. 456, 27 So.2d 683; Sec. 561, Code 1942.
The appellant, Bishop W. Sandifer, executor of the estate of Edward L. Sandifer, deceased, appeals from two decrees of the Chancery Court of the First Judicial District of Hinds County, Mississippi.
The record discloses that on October 27, 1952, Edward L. Sandifer, brother of the appellant, executed a last will and testament wherein he left all of his estate to the appellant, Bishop W. Sandifer, and appointed him as executor of the will without bond. Thereafter, on May 21, 1957, the decedent, Edward L. Sandifer, married Mrs. Audrey Sandifer, and they lived together as husband and wife until his death on October 29, 1958. On November 25, 1958, the last will and testament of the deceased was probated in common form and letters testamentary were issued to the appellant as executor of the will. On January 6, 1959, the appellee, Mrs. Audrey Sandifer, widow of decedent renounced the will above referred to and on the same date filed her petition for allowance of one year's support. On January 8, 1959, the appellee filed petition to set aside the last will and testament of the deceased. On February 11, 1959, the appellee filed her petition for the appointment of a temporary administrator. Thereafter, on the same date, a hearing was held by the court on the petition for the widow's allowance and on the petition for appointment of a temporary administrator. The court allowed the appellee a year's support in the amount of $2,500, and also appointed a temporary administrator and removed the appellant as the executor of the estate of Edward L. Sandifer, deceased.
The appellant assigns as error on this appeal that the court erred in the removal of the executor and in appointing a temporary administrator, and that the court erred in awarding the appellee one year's support in the amount of $2,500.
(Hn 1) The appellant first argues that the court was without jurisdiction to hear the petition for the appointment of a temporary administrator for the reason that no process was served on the appellant, and that he was without power to remove the executor. No process was issued or served on the appellant. The record discloses that the hearing was held on February 11, 1959. Counsel for appellant objected to the hearing but not on the grounds he was entitled to five days' notice, but because he had been tied up with other matters and for that reason had not had time to prepare his defense. The record further discloses that counsel for appellant stated in the record that the respondent joined issue in short with the petition for appointment of a temporary administrator. The record further discloses that counsel for appellant took part in the trial, examined the witnesses, and put on the appellant in his defense to the motion. We are of the opinion that the appellant having taken issue with the appellee and participated in the hearing waived the service of process. Griffith, Mississippi Chancery Practice (2d ed.), Section 240.
In Hatchcock v. Owen, 44 Miss. 799, the Court said: "If there was a serious defect in the writ which was served on Hatchcock, it was cured by his plea to the merits. The office of the process was to give notice of the suit, and confer jurisdiction on the court over the person of the defendant. If he appears and pleads on defective service of the writ, or on service of a defective writ, or without a writ at all, the end of the law in this behalf has been attained, and jurisdiction over him for all the purposes of the suit has been acquired."
Appellant contends that no cause existed for the removal of appellant as executor and that the court lacked power and authority to appoint a temporary administrator.
(Hn 2) The petition for the appointment of a "temporary administrator" was brought under Section 520, Mississippi Code of 1942. This section provides that whenever a will is contested the chancellor, on the petition of any interested person, may appoint a temporary administrator if it shall appear necessary for the protection of the rights of the parties. We think the chancellor should have wide discretion in applying this statute. Nowhere does the statute say that before he may appoint a temporary administrator he must find that the executor named in the will is disqualified or has been guilty of misconduct in office. If the will is contested, the matter of appointing a temporary administrator is largely a matter for the chancellor's discretion, and should not reverse his action unless there is clear evidence of abuse of that discretion.
(Hn 3) Since the chancellor had the power and authority to appoint a temporary administrator, it necessarily follows that if an executor has qualified, such executor must be removed during the pendency of the will contest in order to permit the temporary administrator to perfrom his duties pending the outcome of the will contest. We do not construe the decree of the chancellor as permanently removing appellant as executor. An executor may be removed under Section 536, Mississippi Code of 1942, "if he becomes disqualified, or for improper conduct in office." The petition for appointment of a temporary administrator in this case was not brought under Code Section 536, and it was not charged that appellant was disqualified, nor was there any change of misconduct in office. If the will is upheld upon the hearing of the contest, appellant would be entitled to resume the office of executor and to receive the emoluments thereof, unless and until he is removed permanently under appropriate proceedings. Of course, if the will is held to be invalid, appellant's rights to the office of executor fail with the will.
(Hn 4) Under Section 561, Mississippi Code of 1942, the chancellor's allowance for a year's support was a matter for his discretion, and we cannot say that there was an abuse thereof.
It follows that the chancellor's decrees are affirmed.
Affirmed and remanded. McGehee, C.J., and Kyle, Ethridge and Gillespie, JJ., concur.