Summary
In Wright v. Wright, 160 Miss. 235, 134 So. 197 (1931), it was held that evidence that the decedent had formerly lived on the land but had ceased to do so for several months before his death was held insufficient to establish the homestead.
Summary of this case from Patterson v. AdamsOpinion
No. 29424.
May 4, 1931.
1. HOMESTEAD. Evidence that decedent had formerly lived on land, but had ceased to do so for several months before his death, held insufficient to establish homestead ( Code 1930, section 1776).
The evidence showed that decedent had formerly resided on property, but did not show that his removal therefrom and ceasing to reside thereon for several months before his death was temporary by reason of some casualty or necessity, and with purpose of speedily reoccupying it as soon as cause of his absence could be removed, as required by Code 1930, section 1776, to constitute homestead.
2. DESCENT AND DISTRIBUTION. Mortgages. Title remained in grantor after executing deed of trust, and, on his death, property descended to his heirs ( Code 1930, sections 1402, 2128).
As a result of the above rule, grantor's heirs, and not grantor's administrator, were entitled to excess over debt on foreclosure sale under deed of trust.
3. EXECUTORS AND ADMINISTRATORS. Proceeds from foreclosure sale did not "accrue" to deceased grantor's estate so as to make excess over deed of trust debt payable to administrator, instead of to heirs ( Code 1930, section 1643).
Money obtained from sale of property by trustee under deed of trust did not "accrue" to deceased grantor's estate, and would not accrue thereto within Code 1930, section 1643, so as to make excess over debt secured by trust deed payable to grantor's administrator, instead of to grantor's heirs, until court should so order in proper proceeding under statute permitting administrator to resort to decedent's realty for payment of decedent's debts, since there was no claim that it was necessary for administrator to do so.
4. EXECUTORS AND ADMINISTRATORS.
Rent accruing on decedent's realty during year of decedent's death held asset in administrator's hands (Code 1930, section 1643).
APPEAL from chancery court of Jones county, Second district; HON. F.F. MIZE, Chancellor.
D.B. Cooley, of Laurel, for appellants.
In order for the heirs of a decedent to recover in a suit brought by them against a debtor to decedent's estate, they must allege, and if the allegations is denied, prove, that there is no local administrator of the the estate, and that there exists no necessity for the appointment of one.
Richardson v. Neblett, 84 So. 695.
The bill of complaint does not allege this fact, and there is no testimony in support of it.
This suit violates and runs counter to our whole scheme of the administrations of estates.
Section 1643, Code 1930; sections 1626, 1656.
The court erred in excluding the testimony of Annie Wright by which it was sought to prove that the property was not the homestead of the deceased. The court excluded this testimony on the theory that as Annie Wright had a claim against the estate she was not competent to testify in this suit. It is our contention that the statute does not apply in this case.
Cole v. Gardner, 7 So. 500; section 1529, Code 1930.
Montgomery Buchanan, of Laurel, for appellees.
Appellants, by inconsistent pleading, raised a false issue, to-wit: The right of the administratrix to collect the proceeds of the sale of the real estate.
Another issue attempted to be raised by appellants was the right of appellees as heirs of Van Wright to bring this suit. The only answer we make to that condition is simply referring the court to section 131, Griffith's Chancery Practice, and citations thereunder, and 24 C.J., page 798, wherein, it is stated that the heirs are the only persons who are entitled to bring such suits, except by special authority of the chancery court upon showing the insufficiency of personal property to pay the debts of decedent, or other special conditions which would warrant, an exception to the rule. In this case, no intimation of such reasons are found in the pleadings or proof.
Under no conditions is the administrator entitled to the exempt real estate as against the heirs.
Section 1410, Code 1930; Griffith's Chancery Practice, section 131.
Taking everything claimed by appellants as true, they are still barred under the rule laid down in 23 C.J. 1139, which is as follows:
"So where land belonging to the estate of a decedent is sold on foreclosure of vendor's lien notes, any excess of proceeds over the notes goes to heir at law."
Section 1755, Code 1930; section 2139, Code 1906.
The appellees exhibited an original bill in the court below against Annie Wright and D.B. Cooley, alleging, in substance, that they are the only heris at law of Van Wright, who died seized and possessed of certain land, his homestead, on which he had given a deed of trust to Annie Wright to secure the payment of an indebtedness due her by him, in which deed of trust the appellant D.B. Cooley was trustee. After the death of Van Wright, Cooley sold the land in accordance with the provisions of the deed of trust, and Annie Wright purchased it for a sum in excess of the indebtedness due her by Van Wright.
The bill also alleges that Annie Wright has been in possession of said land since the death of Van Wright and prays for an accounting by the appellees for the surplus remaining after deducting the amount of the indebtedness due by Van Wright to Annie Wright from the amount paid or agreed to be paid by her for the land, and for an accounting from Annie Wright for the amount due by her as rent on the property after Van Wright's death.
The appellants' answer denied that the land was Van Wright's homestead, admitted the purchase at the trustee's sale by Annie Wright for an amount exceeding the debt secured by the deed of trust, and admitted that she had been in possession of the property for ten months.
The answer then alleges that Annie Wright has been duly authorized as administrator of Van Wright's estate and that she is entitled, as such, to the proceeds of the sale of the land in excess of the debt secured thereon which excess Cooley, the trustee, turned over to her.
After hearing evidence as to whether or not the land was the homestead of Van Wright, the court rendered a decree directing the appellants to pay to the appellees the amount paid by Annie Wright for the land in excess of the debt secured thereon, and the expense incident to the sale; that Annie Wright be charged with a reasonable rental of the property for the time she was in possession of it after Van Wright's death and prior to her purchase of it at the trustee's sale, and appointed a master to ascertain the amounts so due the appellees. From this decree an interlocutory appeal to this court was granted.
The evidence is insufficient to support the appellees' claim that the property was Van Wright's homestead. He had formerly resided thereon, but at the time of his death had caused for several months so to do, and it does not appear from the evidence that his removal therefrom was "temporary, by reason of some casualty or necessity, and with the purpose of speedily reoccupying it as soon as the cause of his absence can be removed." Section 1776, Code of 1930.
That the land was not Van Wright's homestead does not render the decree of the court below incorrect in so far as it adjudicates the right to the excess of proceeds of the sale of the land by the trustees over the debt secured by the deed of trust thereon.
Under section 2128, Code of 1930, the title to this land remained in Van Wright after the execution by him of the deed of trust thereon, and, on his death, it descended, under section 1402, Code of 1930, to, and became vested in, his heirs. Campbell v. Doyle, 57 Miss. 292; Gordon v. James, 86 Miss. 719, 39 So. 18, 1 L.R.A. (N.S.) 461. When it was sold under the deed of trust, the title had vested in these heirs and therefore they, and not Van Wright's administrator, were entitled to the foreclosure sale. 23 C.J. 1146. Section 1643, Code of 1930, provides that: "The goods, chattels, personal estate, choses in action, and money of the deceased, or which may have accrued to his estate after his death from the sale of property, real or personal, or otherwise, and the rent of lands accruing during the year of his death, whether he died testate or intestate, shall be assets, and shall stand chargeable with all the just debts and funeral expenses of the deceased, and the expenses of settling the estate; and the lands of the testator or intestate shall also stand chargeable for the debts and such expenses over and above what the personal estate may be sufficient to pay, and may be subjected thereto in the manner hereinafter directed." The words "which may have accrued to his estate after his death from the sale of property" have no application here, for the money here obtained from the sale of the property by the trustee in this deed of trust did not accrue to decedent's estate, and will not accrue thereto, unless and until the court shall so order in a proper proceeding under the statutes which permit an administrator to resort to a decedent's real estate for the payment of the decedent's debts. No claim is here made that it was necessary for the administrator to so do.
It follows from the foregoing that the payment by the trustee to Annie Wright of the money received by him from the sale of the land in excess of the debt secured thereon and the expenses incidental to the foreclosure sale did not acquit him from liability to the appellees therefor.
Under section 1643, Code of 1930, the rent of the property accruing during the year of Van Wright's death is an asset in the hands of his administrator; and, as we understand the record, the possession by Annie Wright of the property prior to her purchase thereof was during the year of Van Wright's death.
The decree of the court below will be affirmed in so far as it adjudicates the right to the money received by the trustee from the sale of the property under the deed of trust; but will be reversed as to Annie Wright's liability to account to the appellees in this proceeding for any rent that may be due by her for the property.
Affirmed in part; reversed in part, and remanded.