F. W. Rosenthal & Co. v. Enevoldsen

Cooper, J., delivered the opinion of the court. This is a bill filed by certain creditors of E.Enevoldsen against him personally and as administrator of the estate of Julia, his late wife, and against the children of the intestate, to subject to the payment of their claims certain property which it is averred was fraudulently transferred by the debtor to his wife during her life. The administrator pleaded that six months had not elapsed between the grant of administration and the institution of the suit, which plea was held sufficient by the Chancellor and the bill dismissed. Section 2086 of the Code of 1880 declares thatno suit or action shall be brought against any executor or administrator, in such capacity, till after the expiration of six months from the date of the letters testamentary or of administration.” In Breckinridge’s Admr. v. Mellon’s Admr., 1 How. 273, it was held that a scire facias to revive a suit was not such an action as was meant by the statute, and that the administrator might be proceeded against in that suit within the time prescribed. Reedy v. Armstead, 31 Miss. 353, and Anderson v. Newman, 60 Miss. 532, were suits in which it was attempted to fix charges upon [536] the estate and to have satisfaction thereof by final process. The case now before us differs from those heretofore decided, as it is neither the continuing of a pending suit nor an attempt to fix a charge on the estate, its sole purpose being to contest with the administrator the title of the estate to the property in controversy. It is nevertheless a suit brought against the administrator in his capacity as such, and one which could not be proceeded with in the absence of the representative of the estate, and is therefore at least within the letter of the statute. We do not say that cases may not arise requiring a restriction of the letter of the statute, but this should only be done where it clearly and unmistakably appears to be such a case as was not contemplated by the legislature. We cannot say that this is such case. The administrator here may, from his connection with the business referred to in the bill and of his participation in the transaction attacked, have full knowledge of all the facts necessary to be known to prepare his defense to the suit, but if a stranger had taken administration it is apparent that it might be of the greatest importance that time should be given to enable him to familiarize himself with such facts, and we must assume this to have been the reason which operated on the mind of the legislature. Under such circumstances both the necessity for and the application of the statute would appear, and since this case falls within that class of cases contemplated, it is not withdrawn from its operation by the individual circumstances peculiar to it. The deoree is affirmed.