Dogan v. Brown

SlMR-ALL, J.: The essential question presented in the record and debated by counsel, is whether the decree of the probate court, made on the final settlement, in 1853, is a bar to the relief sought in the petition of Dogan and wife. For the plea in bar, it is claimed, that this decree, reciting that it was rendered on due notice to said Elizabeth, and that the other legatees and heirs of the testator, is conclusive. For the plaintiffs, it is insisted that the papers and other matters, offered to be shown by the records of the probate court, contradict these recitals, and demonstrate that the decree is void, for want of proper notice. It is axiomatic, that a record imports absolute verity— that it proves itself, and is conclusive upon the parties, and' their privies ; that it may have this solemn import, it must' show, that the court had jurisdiction over both the parties and subject matter. The solution of the precise point discussed by counsel, — 242 — would be simplified by a knowledge of wbat is “ matter ” of record in proceedings of final settlement.. The account itself filed in the court, the citations and publication notices, warning the parties interested, and the orders and decrees on the minutes of the court, would be conceded to be “ matter ” of record. It is so well settled in this court, that the recital in a decree made upon final settlement accounts, that the legatees;, or distributees have been duly summoned, etc., is' evidence of the fact, that we deem it unnecessary to refer to the cases. In Monk v. Horne, 39 Miss., 103, such recitals are regarded as prima fade evidence of due and legal service, and will suffice, if nothing else appear. The Commercial Bank of Manchester v. Martin, 9 S. & M., 622, discloses how this prima fade case may be combatted, to-wit: The inspection of the entire record, which would, or might furnish “ conclusive proof,” whether the recital be il true or false.” In Pounds v. Gartman & Pendleton, 29 Miss., 133, the doctrine announced, was, that these recitals must be controlled, by other parts of the record ; process is part of the record, when that is produced, and does not appear to have been served on the proper parties, the recital in the decree will not be sufficient. The plea sets up “ that after the notice to all parties interested in said estate, as prescribed by law, the court decreed the allowance of his account, and discharged him, the executor, from all further trusts and liabilities,” etc. The decree read in evidence in support of the plea contained this recital: “ and the citation heretofore issued having been returned executed on all the parties interested in said estate, and no person appealing and objecting, etc., it is ordered that the executor pay over to James M. Curry, guardian of the minor children of the testator, $3,482 89 ” (retaining some for small legacies). This sum of $3,482 89, is the net balance in the hands of the executor — the surplus for distribution. — 243 — Mrs. Dogan states in her petition that, at the date of this decree, she was almost six years of age, and not twenty-one when she brought this suit. The decree shows that all the children of the testator were then minors, and that one Curry was their guardian. The plaintiffs then offered to read in evidence a citation issued the 26th of August, 1853, directed, among others, to Elizabeth Curry and “ her husband, ” Eliza Powers, Susan, Mary, Elizabeth, and Andrew J. Powers, all minor heirs at law of Lewis B. Powers, deceased, to appear at the next October term, the first day of the term, to show cause why Andrew R. Brown, administrator of Lewis B. Powers, should not settle his account, etc. The return of the sheriff is executed on Eliza, Susan, Mary, Andrew J., and Elizabeth Powers, September 1st, 1853. The plea states that the final account was filed at the August term, and the decree was made at the October term, 1854. The specific objections made to the citation in the probate court as evidence, was that it was without seal, and second,' it contradicted the record. The clerk proved his habit to keep in separate files all papers pertaining to the particular estates; that this citation was among the proper files; that his signature to it is genuine; that the seal then in use was old and worn, and made but a dim, hardly perceptable impress ; that he may have sometimes omitted the seal from official papers; that he never issued an alias, or duplicate citation, without the special order of the court. Plaintiff then offered the minutes of the court, from August to October term, inclusive, to show that no alias citation was issued; all which the court refused, and finally rejected the citation and return thereon as evidence. The action of the court must have been predicated on the-idea, that to admit the evidence would be a permission to the plaintiffs to contradict the record by parol. The general principle is, that a party claiming benefit under a decree must produce the entire record of the suit. — 244 — The presentation of the decree alone is not enough, for non constat, but that other parts might show that it was vacated,, set aside, or reversed. Moreover, it is essential to its validity that the jurisdiction of the court appear. Within the scope of the cases cited, the recital of due and legal service- made a ¡prima facie case of the notice to the legatees1; bust not conelusive ; for the same caseg hold, that other parts ©f the record may be resorted to, to show what is the actual truth. When it is conceded that the process of citation is' parcel of the record, it is pushing the principle to its utmost verge, to hold that a recital in the decree, that due notice has been given, by service of citation, is evidence of the fact. The? recital that a state of facts has been proved, which exist in paid, and which may be established by testimony at the hearing, very surely is and ought to be conclusive. It is clear to our minds that the only notice of the final settlement to the legatees was the citation proposed to be read. If it lacked the seal of the court, and for that reason was defective, it was none the less the ££ process n by which these parties were brought in-as defendants, and was a part of the proceedings in the cause — -parcel of the record. The misprision of the clerk in failing to impress his official seal upon it, however it may have effected its efficiency and value as a writ, did not take from it its character of process. It is manifest that the probate court recognized it as notice served on tlie parties. The account was filed at the August term. The statute required forty days’ notice. It was issued the — day of August, returnable to the October term, and was executed 1st September. No subsequently issued writ could have given forty days’ notice. And without the full statutory notice the decree would have been void. Neil v. Wellons, 12 S. & M., 650. Would this citation, if admitted in evidence, have overcome tbe recital in the decree ? If so, then the inference or deduction of the court of due service of the citation will be proved to be erroneous. To affirm that a declaration in the body of the decree, that process had been served according — 245 — to law, shall outweigh an actual inspection of the writ, and. the return thereon, showing the reverse, will not for one moment stand the test of reason. And to meet the proposition to introduce and examine the writ, with the objection that it is an offer to contradict the record, is equally unreasonable. The whole record must be consulted, and,' as an entirety, it must tell its story. The statute, Kev. Code, 682, art. 12, requires, as to notice of final settlement, that where any legatee, heir, or distributee shall be a minor, citation as to them shall be served on their ¡guardians, and publication be directed to them by name and character. Without the notice required by law, the judgment allowing the account is void. Moore v. Cason, 1 How., 60; Steen v. Steen, 25 Miss., 531. Cason v. Cason, 31 Miss., 595, arose under this statute. Alexander Cason was a minor when the order ®f publication was made. The order of publication was not addressed to his general guardian, nor to a guardian ■ad litem,. “ The publication having been addressed to the minor by name, the final settlement as to him was void.” The only difference between this case and the one at bar, is, that fee former was an attempted notice by publication, the .latter by personal eitation. The requirement of the statute is, that if the ‘‘legatee,” etc., be a minor, the citation must be served on the guardian. The citation is addressed to the plaintiff, Elizabeth, and her brother and sisters, as minors. The decree discloses the fact that Curry is their guardian,.and property in the hands •of the executor are directed to be delivered to him. It was a prerequisite to jurisdiction over the minors, so as to bind them by the settlement, that the citation should have been served on the guardian. The return of the sheriff shows that this was not done — unless, indeed, it was accomplished by the endorsement on the citation “ executed ” on Curry “ and her husband.” This return shows a precise execution of the precept, but — 246 — it falls short of communicating to Curry — if indeed he was the same man — that he must appear to the proceeding in his fiduciary character. In suits seriously touching the property rights of infants — of very tender years, as were these children — nothing should be left to intendment. The only line of caution and safety, is the course marked out by the law. Where a party holds two different characters, he must be dealt with as two • separate persons, and only in the charac,-ter in which he is brought before the court. Smith v. Hurd, 7 How., 200; May v. Tomkins, 9 Munf., 520; 2 Bland, 99; 10 Peters, 90. , We are, therefore, conducted to the conclusion that there was error in the refusal of the probate court to admit in evidence the citation, and the indorsement of the sheriff thereon, and also the minutes of the court. In our view, this evidence would have conclusively shown that the decree on the final settlement did not conclude the plaintiff. Such would be its effect,, unless the whole record would present a different phase. The settlement, however, would be entitled to all the virtue of an annual or partial account. It' would be presumptively correct, and it would devolve upon the plaintiffs the onus of pointing out inaccuracies and errors. The principle seems to rest pretty firmly on authority, that the final settlement is only conclusive as to the matters therein included. The functions of the administrator continues as to all matters not previously and finally settled. Henderson v. Winchester, 31 Miss., 295; Smith v. Hurd, 7 How., 200. Wherefore the decree of the probate court is reversed, and the cause remanded to the chancery court of Tallahatchie county for further proceedings, in accordance with this opinion.