Cathey v. Kerr

Buchanan, J. John Cathey died in 1837. lie left a will, which was admitted to probate. By his will, his wife Rebecca, was instituted universal legatee. She was married again to a man named Murray, who died before her. Mrs. Murray died in 1853. She seems to have taken possession of Cathey’s estate, which consisted altogether of his interest in community property, and to have enjoyed it, during her life, without interruption. She died without children, and intestate. James D. Kerr, the husband of one of her neicos, took out letters of administration of Mrs. Murray’s succession. On the 7th of January, 1856, Kerr filed his account of administration, showing the assets in hand and debts paid; and prayed that the same might be duly advertised and homologated, and for his discharge as administrator. On the 14th of February, 1856, Lafayette W. Cathey filed, what he called, an opposition to this account of administration ; in which ho alleges, that all the property inventoried as belonging' to the Succession of Mrs. Rebecca Murry, in truth belongs to the succession of her first husband, John Cathey, who died intestate, and of whom the petitioner is nephew and one of the heirs. Tho petition opposes the discharge of the administrator from his official bond, until the rights of petitioner in the estate be adjudicated upon, and the amount to which petitioner is entitled, be paid over to him by the administrator. Several other persons claiming to be heirs of John Cathey, intervened by petition, and pray to be allowed to join the opponent, Lafayette Cathey, in claiming the estate in the hands of the administrator. The administrator excepted to the right of the opponent to oppose in this manner, the homologation cf the account of administration. This exception was properly taken. The account of an administrator is rendered to the creditors and heirs of the estate which he administers. But the opponent and appellant, Lafmjetle W. Cathey, docs not make any claim in cither of those capacities. lie claims the property which is administered, as belonging to himself, and not to the succession of the intestate. An action of revendieation is instituted in tho disguise of an opposition to an administrator’s account. It is, therefore, adjudged and decreed, that tho judgement of the District Court, dismissing the appellant’s opposition to the account of administration of ihe appellee, be affirmed, at the costs of the appellant.