Pollock v. Buie

Peyton, C. J.: Thomas C. Pollock as surviving administrator of the estate of J ames L. Galeote, deceased, instituted suit in the circuit court of Copiah county, against Robert W. Buie and Alexander M. Buie, as executors of the last will and testament of Neill Buie, deceased, and B. Pendleton, on a writing obligatory for $1,505, executed by said Neill Buie, deceased, and B. Pendleton, on the 7th day of February, 1859, and payable to Stephen Odell and Thomas 0. Pollock as administrators of the estate of the said James L. Galeote, on the 15th day of December next thereafter. At the October term of said court, 1866, the defendants Robert W. Buie and Alexander M. Buie, appeared and pleaded that they were not executors of the said Neill Buie, deceased, having settled the administration of said estate and been finally discharged by the probate court as executors of said — 150 — deceased, before the commencement of this suit. Upon this plea an issue of fact was joined. And at the April term, 1867, a judgment by default was taken against the defendant, B. Pendleton, and upon the issue joined upon the plea of the other defendants, the case was submitted to a jury, who found for the plaintiff his debt and damages, whereupon the defendants Buie moved the court for a new trial on the grounds that the verdict was contrary to law and evidence, and that the court erred in excluding from the jury the evidence offered by the said defendants. The motion was sustained and a new trial granted the defendants, and to this ruling of the court the plaintiff excepted. At the April term, 1868, the said defendants, Buie, by leave of the court, filed an additional plea of payment upon which issue was joined, and the cause again submitted to a jury, who found a verdict for the defendants, Buie. The plaintiff then moved the court for a new trial, which motion was overruled by the court, and judgment rendered against the plaintiff for costs of suit. To the action of the court in overruling the motion for a new trial, the plaintiff filed his bill of exceptions, and prosecutes here this wilt of error. The record in this case presents two important questions for our decision: 1st. Was the decree of the probate court on what purported to be a final settlement of the account of the executors of the last will and testament of Neill Buie, deceased, void for want of notice to the parties interested ? 2d. And if said decree was not void, did it constitute a bar to the plaintiff’s action against said executors? With respect to the first question, the record shows a waiver of notice by citation, and consent that the account of said executors may pass to a final hearing on the part of all the legatees and devisees of the testator, except Dorothy V. McCall, upon whom citation had been executed by the sheriff on the 18th day of September, A. D. 1865. And the decree recites that all the legatees and devisees had due and legal notice of the pendency of the account, and waived citation, and that all the said legatees and devisees were of — 151 — full and lawful age, except Dorothy Y. McCall, who was a minor without a legal guardian, for whom the court appointed a guardian, ad litem, who being in court, accepted the trust and waived notice and citation, and consented that the said account might then be examined and audited. We think upon principle and authority, these waivers in the record, and recitals in the decree, are sufficient evidence of notice to the parties interested of the pendency of the account, and of the time and place of the final settlement thereof, to sustain the decree made by the court on said settlement. For it has been repeatedly determined by our predecessors that the court of probates, as to the jurisdiction conferred by the constitution is a court of original and general jurisdiction, and that every presumption is to be indulged in favor of the correctness of the facts on which its decree is founded, and which appear of record. Root v. McFerrin, 37 Miss., 17; Hardy v. Gholson, 26 Miss., 70; and Duncan v. McWherter, 40 Miss., 231. The evidence upon which the orders and judgments of courts of general jurisdiction are founded is not necessarily a part of the record, nor required to be shown by it. The presumption of law is that such judgments are founded upon proper and sufficient evidence and cannot be collaterally impeached, however insufficient the evidence may have been in fact. Cason v. Cason, 31 Miss., 578, and Cannon v. Cooper, 39 Miss., 784-789. This brings us to the second and most important question in the cause: “ If the decree be valid, did it constitute a bar to the plaintiff’s action against the said executors?” The solution of this question involves the consideration of the power of the court of probates to discharge an executor or administrator from the further execution of his trusts upon what purports to be a final settlement of his administration account, and of the effect of such a decree as to the right of creditors of the decedent. In the case at bar, the decree of the probate court, upon which the executors rely as a defense to this action, was rendered on the 3rd day of October, 1865, and this suit was — 152 — commenced against said executors and Pendleton on the 20th day of September, 1866. The first plea of the defendant Buie is not properly a plea of ne xunqu&s executors, as it admits that they were once executors, but it avers that they were not liable at the commencement of this action, to be Sued as executors, having been previously discharged from the further execution of the trusts of the will by the said decree of the probate court, the language of which is, “ that the said account appearing to the satisfaction of the court, to be just, correct, and properly vouched for and sustained by proofs, it is ordered and adjudged by the court that the same be in all things allowed, and that the said account be recorded. And it appearing to the satisfaction of the court that the said executors have fully paid and discharged all the legacies bequeathed by the said will, it is thereupon considered by the court that the said executors be fully acquitted and discharged as such.” In order to ascertain the extent and legal effect of this decree, it becomes necessary to examine the various provisions of the statute in relation to the administration of estates of decedents, by executors and administrators, and to the powers and duties of the probate court in the course of such administration. Article 81 of the Revised Code of 1857, page 443, provides that it shall be the duty of every executor and administrator to proceed to pay the debts as speedily as may be, out of the assets which may come to his hands, if the estate be solvent; and in order that its true condition may be speedily known, it shall be the duty of the executor or administrator, within two months after the grant of his letters, to publish in some newspaper printed in the county, or in some adjacent county, a notice requesting all persons having claims against the estate of his testator or intestate, to exhibit the same and have them registered in the mannner and within the time prescribed by law, or they will be forever barred; which notice shall state the time when letters were granted, and shall be published for six consecutive weeks, or longer, if the court should so direct. And the statute further requires that — 153 — all claims against the estate of a deceased person, whether due or not, shall be registered in the court in which the letters testamentary or of administration were granted, within two years after the first publication of notice to creditors to present their claims, as required by the said 81st article, or the claim shall be barred, and no suit or action shall be sustained thereon, either at law or in equity. Rev. Code, 444, article 83. The record in this case contains no evidence of the time when the letters testamentary were granted to the executors or of any notice having ever been given as required by law, to creditors to exhibit and register their claims against the estate of their testator. It does not appear, therefore, that the claim sued on in this action is barred by this statute, nor is it barred, as the evidence shows, by the general statute of limitations. An executor or administrator takes the estate of the deceased in trust, first for the benefit of creditors, and then for the legatees or distributees, and no estate can properly be said to be fully administered, so long as there remain debts of the estate to the payment and satisfaction of which the estate is liable. And hence the law provides that when the estate has been fully administered by payment of the debts, and the collection of all the money due, it shall be the duty of the executor or administrator to make a final settlement of the administration by making out and presenting to the court under oath, his final account. Rev. Code 451, art., 106. And if all process be returned duly executed, or the parties interested have been legally and properly notified of pendency of the account and of the time and place of settlement, the court may at the time appointed, proceed to examine the final account so filed, and to hear the proofs in support of it, and the objections and proofs against it. And if the court shall, after full investigation, be satisfied that it is just and true, it shall proceed to make a final decree of approval and allowance, ratifying and confirming the administration, and shall at the same time, order the executor or administrator to make immediate distribution of all property — 154 — in his hands. Rev. Code 451, art., 107. When is it that an executor or administrator may make a full settlement of the administration ? The statute answers, when the estate has been fully administered by the payment of all the debts. When is it, that upon final settlement, the court shall order the executor or administrator to make immediate distribution of all the property in his hands ? The answer is, when the estate has been fully administered by the payment of all the debts. It is not to be presumed that whilst the claims of creditors, the primary objects of the trust, remain unsatisfied, the court would order an immediate distribution of all the property ,in the representative’s hands among the secondary objects of the trust, the legatees and distributees. It is not in the power of the court to discharge an executor or administrator until the trusts are fully executed, except in the case of removal or resignation, when administration de bonis non shall be granted as in case of the death of the executor or administrator, and with like effect on all the proceedings by or against the executor or administrator. Rev. Code, 439, art. 67. It is-insisted by the counsel for the defendants, Buie, in error, that the settlement was made under the said 67th article of the Code, and was not a final settlement of the estate, but was a final settlement of the executorship of these defendants, and a resignation of their trust by the consent of the court, and that from the nature of this act, the decree necessarily put an end to their capacity to act for the estate, and that after this decree and final settlement, they were discharged from the trust and only liable to be sued on their bond, for such devastavit as they may have committed during their term of office. This argument is more ingenious than sound. The decree itself purports to be a final settlement of the whole estate. It states that it appearing to the satisfaction of the court that legacies were all fully paid and discharged, and that there was found due to the said executors upon the settlement, the sum of $2",726 03, and the court thereupon discharged the executors, and decreed that the — 155 — legatees pay them the amount thus found due therein. The entire account and decree clearly indicated that the settlement was designed and intended to complete the administration, and wind up the whole business of the estate, and was not as contended by counsel, a mere resignation of the trust, leaving the administration unfinished and a part of the estate unadministered. The account covered the whole estate, and upon the settlement, there appears to have been no portion oí the estate left unadministered ; we are, therefore, impelled to the conclusion that the settlement was not intended to be a mere surrender of an unfinished trust, but a full and complete administration oí the entire estate under article 106 of the Rev. Code, 451. And it was, therefore, not a case in which a grant of administration de bonis non was authorized by law. Por it is only in a case where an executor or administrator shall die, resign, or be removed before a final settlement of the estate, that letters of administration de bonis can properly be granted. Rev. Code, 439, art. 65. If, in the course of administration, any portion of the estate is ordered to be distributed, the interests of creditors are secured by requiring the distributees to give refunding bonds to meet the debts and liabilities of the estate. But this is never done upon a final settlement of an estate, for the reason that the debts are presumed to have been paid. From this view of the law, it will clearly appear, that while there are valid and subsisting debts against the estate, the executor or administrator cannot be legally discharged from the trust of his administration, except by death, resignation, or removal; and upon the happening of either of these events, it is provided that administration de bonis raen shall be granted. This keeps the doors to the estate open, so that the creditors may have an opportunity to collect their claims against it. But if, as is insisted, the settlement of an estate, purporting to be final, precluded existing creditors from instituting suits against the executor or administrator for the collection of valid and subsisting claims against the estate, great wrong and injustice would be the result, and the pri — 156 — mary purpose, object, and policy of the law, in granting administration upon estates of decedents, would be defeated. To hold the estate liable, notwithstanding such settlement, would, in our opinion, accord with the spirit and policy of the law, and subserve the ends of justice, and it would constitute no hardship upon the executor or administrator, as by a faithful discharge of his duties, he would have it in his power to wind up and completely finish the administration of a solvent estate, within a reasonable time, by giving the proper notice to creditors to present their claims within the time prescribed by the law, and all claims against the estate, of which he had no notice, within the time limited by the law, after publication of such notice, would be barred, and could no longer be regarded as valid and subsisting debts against the estate. And the law thus being complied with, the executor or administrator, after paying all the debts of which he had any knowledge within the time limited by the statute, could safely make a final settlement of the estate, and a distribution thereof among the legatees or distributees. But to hold that a settlement, purporting to be a final settlement of an estate, made without a compliance with the requisitions of the law, would be conclusive upon creditors would put them completely at the mercy of the executor and administrator and the legatees and distributees. The creditors are not bound by a decree of the probate court upon the settlement of the administration of a solvent estate, for the reason that they are not parties or privies to it. Thornton v. Glover, 25 Miss., 134. For there-is no principle better settled than that no person is bound by a judgment or decree to which he is not a party or privy, unless it be a decree or judgment in rem. But no person can properly be regarded as a creditor of an estate whose debt has been barred, and who has not a valid and subsisting claim against it. The decree of the probate court was no bar to the plaintiffs right of action against the executors, and in case of recovery the property administered and distributed would still be liable to be taken in execution for the satisfaction of — 157 — the judgment. For it is a well established principle that the office of a trustee ceases only with the final execution of his trust. In the case of Henderson v. Winchester, 31 Miss., 295, the court say: “ Our statutes provide that an administrator may be removed by the court for cause, and that he may resign his trust by the consent of the court. From the nature of these acts they necessarily put an end to his capacity to act for the estate. But the probate court has no power to discharge him from his trust upon the mere settlement of a final account, and without distribution.” The decree for distribution upon the final settlement in this case, was evidently founded on the presumption that all the existing debts against the estate had been fully paid and satisfied. In the case of Thornton v. Glover, above referred to, the court say: “ The probate court has nothing to do with the, settlement of debts, except in the case of insolvent estates,” and in speaking of the rights of, legatees and distributees, the court further say: “ These several parties, however,, have none but contingent rights till the debts of the estate shall have been paid.” It is for this reason that a settlement must first be had in the probate court to determine the amount of the estate to be distributed, and this cannot be done till the claims of creditors, which are superior to those of legatees or distributees, have been paid. This is an authority in support of the position that no settlement and distribution of an estate can bar or preclude the creditors from pursuing the personal representatives and subjecting the property of the estate to the payment of their claims. Upon the whole, we have arrived at the conclusion that the settlement of the executor’s account in the probate court, though valid as to the parties to it, is not a bar to the plaintiffs action in this case. And for that reason the judgment must be reversed, the verdict set aside, and the cause remanded for a new trial, upon which the plaintiffs action will be subject to all the defenses arising from the statutes of limitation, payment or otherwise, to which any executor — 158 — or administrator would be entitled when sued by a creditor in the course of administration. Judgment reversed, the cause remanded, and a venire de novo awarded.