Bowen v. Seale

Tabbell, J.: This case comes here from the probate court of Chickasaw county. It appears from the records that Jesse Seale, James Bailey and R. C. Bowen were joint executors of the will of Greorge Bowen, deceased. After several years of joint exercise of this trust, Jesse Seale died, and Jerry Seale and Ann Seale were appointed administrator and administratrix of his estate. Afterward the letters of James Bailey and R. C. Bowen, as executors of Greorge Bowen, deceased, were revoked, and M. J. K. Bowen was appointed administrator, de bonis non. In: January, 1866, the administrator and administratrix of Jesse Seal, deceased, filed with the probate court of — 38 — Chickasaw county, the final account of their intestate as one of the executors of the will of Greorge Bowen, deceased. Thereupon it was ordered that notice be given to the several persons interested in the matters of said account, to be returnable to the March term, 1866, of that court. Publication of the notice was also ordered. Except in the recitals of the final decree, there is nothing in the record to show service or publication of the notice. At the September term, 1866, the court made its final decree, by which the estate of Greorge Bowen, deceased, is decreed to be indebted to Jesse Seale, as executor, etc., in the sum of $548 25, and that Jerry Seale and Ann Seale, administrator and administratrix, have and recover of M. J. K. Bowen, administrator, etc., to be levied of the goods and chattels, lands and tenements, of the estate of Greorge Bowen, deceased, in his hands, for which execution may issue. At the May term, 1867, of the court below, M. J. K. Bowen, administrator,, etc., filed a bill of review, asking the correction of alleged errors in said final account. A demurrer to this bill was sustained by the court. At the June term, 1867, of the same court, the said administrator filed an amended bill of review, setting out the appointment of Seale, Bailey and Bowen as executors of Bowen, deceased; his own appointment as administrator; the decease of Jesse Seale; the appointment of Jerry Seale and Ann Seale as administrator and administratrix of the estate of Jesse Seale, deceased; the filing of the final account of Jesse Seale, deceased, as one of the executors of Greorge Bowen, deceased; the decree thereon, with the allowance of execution; that there was allowed in the final account the sum of $1,148 05, without vouchers and without authority of law, which had been before allowed in the first annual account of Jesse Seale, deceased, in his life-time; that Jerry Seale and Ann Seale, administrator and administratrix, fraudulently concealed from the complainant the fact that the above sums had been once allowed to the intestate in — 39 — Ms life-time, and were pending for allowance in tire final account; that the complainant was assured by said Jerry and Ann Seale of the justness, legality and propriety of tbe credits claimed in tbe final account, and tbat, if at any time thereafter it should be ascertained to tbe contrary, tbe errors should be corrected; tbat, as administrator de bonis non, tbe complainant was unfamiliar with tbe papers in tbe estate of tbe deceased, and wholly ignorant of tbe true facts of tbe case, and fully confiding in tbe assurances and promises of said Jerry and Ann Seale, administrator and administratrix, be was induced to make no further examination into tbe facts, and to allow tbe final account to be allowed without answer or exception thereto; wherefore, tbe complainant charges tbe decree to have been obtained by fraud, against law, right and justice, and in violation of tbe rights and interest of tbe estate of George Bowen, deceased. In conclusion, tbe bill of review prays for a review of tbe final account and of tbe decree thereon; tbat tbe final account be surcharged and falsified, and for general relief. Tbe bill of review, as amended, is sworn to. To this amended bill a demurrer was filed, stating tbe following causes of demurrer: “1. No such interest is shown in tbe subject-matter of said bill as will entitle said complainants to institute or prosecute tbe same. “2. Tbe said bill does not allege or set forth tbe errors in law, apparent upon tbe face of tbe decree sought to be reviewed. “3. Said bill does not show new relevant matter discovered in time, since tbe rendition of tbe decree attempted to be reviewed, tbat might not, with reasonable diligence, have been used before tbe rendition thereof. “4. No such fraud, is shown as will authorize tbe court to set aside tbe decree assailed by tbe bill of review.” Tbe court overruled tbe first cause assigned for demurrer and sustained tbe remaining causes, and dismissed tbe bill. — 40 — Whereupon, the complainant brought writ of error. Several causes of error are alleged, as follows : “1. The court below erred in allowing the final account of Jesse Seale, one of the executors of the last will and testament of George Bowen, deceased, without first bringing into court, by process or by publication of notice, James Bailey and R. C. Bowen, Ms co-executors. “2. The court below erred in allowing to Jesse Seale, one of the executors of the last will and testament of George Bowen, deceased, in this: That it was composed, in part, of credits transcribed from exhibit ‘ B ’ to said final account and in items, as stated in exhibit ‘B,’ say, for ‘cash paid executor,’ alias himself, $1,000, without any legal voucher, and not in satisfaction of any just or legal demand against the estate of George Bowen. Also, for this sum, ‘cash paid same, $100,’ without any voucher, and not in satisfaction of any just or legal demand against the estate. “4. The court below erred in sustaining the demurrer of Jerry Seale and Ann Seale, administrators to the bill of reviews filed by M. J. K. Bowen, admin strator de bonis non and heir of George Bowen, deceased. “5. The court below erred in sustaining the demurrer of Jerry Seale and Ann Seale, administrators to the amended bill of review filed by M. J. K. Bowen, administrator de bonis non and heir of George Bowen, deceased. “6. The court below .erred in dismissing the amended bill of review, without giving M. J. K. Bowen the right or opportunity to plead further, having overruled the first cause. “7. The order of publication for the non-residents, heirs of George Bowen, does not state their post-office, nor does it require the clerk to send notice to them. ‘ ‘ 8. The decree against appellant as administrator de bonis non of George Bowen, directs the issuance of an execution, to be levied of the goods and chattels, lands and tenements, in Ms hands to be administered. The error is in decreeing an execution to be levied of the lands and tenements.” — 41 — The bill of review is filed under art. 33, p. 431, Rev. Code, which is as follows: Art. 33. “ The probate court may, at any time, within two years, allow a bill of review to any final order or decree of the court, in the same manner, and according to the same rules that courts of chancery entertain such bills, saving to minors not having ‘a guardian, or whose guardians have not been served with process, the same time after the removal of the disability to file such bill. And in the proceedings for a final settlement, the court may allow any party interested to surcharge and falsify any annual or partial settlement of any executor, administrator or guardian.” Errors in the dismissal of a bill of review, and errors in the final decree sought to be reviewed, maybe examined by. one and the same writ of error (33 Miss. 560), unless the recitals in the final decree may be so regarded; the record affords no proof of service and publication of notice of final settlement, as ordered by the court. Nothing appearing in the record to falsify these recitals, they are held to be, at least, sufficient. 8 Smedes & Marsh. 421; 2 ib. 213; 14 ib. 75; 1 How. 527; 29 Miss. 138; Barker v. Shepard, 42 ib. The final decree, in awarding execution against “lands and tenementsin the hands of the administrator, was erroneous. Were this the only error, it might, perhaps, be corrected, and judgment here ; but the case must go back to be heard on the merits. Buckingham v. Nelson, opinion book J. Within the case of Gradsberry v. Perry, 28 Miss. 118, the bill of review in the case at bar was amply sufficient, without the allegations of fraud. The court erred in sustaining the second, third and fourth causes of demurrer, and in dismissing the bill. The bill charges that the sum of about $1,200 had been previously allowed to Jesse Seale without authority of law, and without any legal authority of the court to allow the same, the said sum having been appropriated to his own use and benefit, and allowed as a credit, without any legal oj; proper vouchers, contrary to law, and — 42 — against the rights of the estate. And the complainant further charges, that Jerry Seale and Ann Seale, administrator and administratrix, fraudulently concealed from him the fact that their intestate had so used and appropriated to his own use the said sums of money, and that the same had been allowed to him in his first annual account and was then pending for final allowance ; but that said Jerry and Ann Seale assured him that all of the credits claimed were legal and just and proper credits, or, if discovered to be erroneous at any time, they should be corrected. ' The complainant further says, that he was unfamiliar with the papers of the estate, and ignorant of the true facts of the case; but that, confiding in the representations and assur anees of the said Jerry and Ann Seale, he was induced to make no further examination into the facts, and to allow the final account to be approved without objection or exception ; wherefore, he charges the allowance of the final account and the final decree to have been obtained by fraud. The allegations that this money had been appropriated by the executor to his own use and benefit, and was allowed to him without proper or legal vouchers, in connection with the assurances of their justness, legality and propriety, by which the complainant was induced to waive objections and investigation, are certainly serious, not merely to the estates interested, but they involve what is more important than money — the character for integrity, not of one, but of several, is involved. There is a general impression, whether well founded or not we do not profess to declare, that the estates of decedents are too often subjected to improvident, illegal and other losses. It should be the duty of the courts to protect these estates, and to hold those in charge of them to a strict account. The exposure of the unfaithful is a special obligation. The allegations of the amended bill of review were such as to demand prompt investigation,. and the bill should have been sustained for that purpose. While, on the one hand, unnecessary litigation should not be encouraged; on the other, no merely technical obstacle, — 43 — within the power and discretion of the courts, should be suffered to prevent an investigation with a view to the real truth and justice of the matter in controversy. Art. 33, p. 431, Rev. Code, is substantially the same as Hutch. Code, and Gadsberry v. Perry, 27 Miss., is the law of this class of cases. The decree of the probate court dismissing the amended bill of review, and in sustaining the demurrer thereto, is reversed, and this cause is remanded to the chancery court of Chicliasaw county.