Masonic Benefit Ass'n v. Simmons

Houston, J., delivered the opinion of the court. A bill was filed by Peter Simmons, as administrator of the estate of Robert Wells, deceased, and by Mary Lewis and said Peter Simmons, as individuals and as two of decedent’s heirs, against appellant (a Mississippi corporation), alleging that said decedent, at the time of his death, February 27, 1903, held a certificate in said association, payable to the estate of said Wells; that on March 7, 1904, said Simmons was appointed administrator of same, as shown by exhibit “A,” copy of his appointment; that during his life he complied with every regulation required by said association — paying all dues, assessments, etc.; that said certificate has been surrendered to said association, with proper proof of death, and all requirements of the laws complied with, entitling the said estate to be paid the amount of said certificate, but that the officers of said association refuse to pay the same to complainants; that, if mistaken in alleging that Peter Simmons is entitled, as administrator, to recover same, then that he individually and said Mary E. Lewis, as said heirs, are entitled to recover two-thirds thereof. The bill is not sworn to, and answer under oath is specifically waived. The answer of defendant admits that said Wells was a member of said association in good standing at the time of his death, but alleges that said association had paid [474] to W. 0. George, the duly qualified administrator of, said Wells in Leflore county, Mississippi, $500, the full amount due by and under said certificate — he having filed a copy of his letters of administration and bond as same with defendant — and asks that defendant be relieved from any further defense, etc., especially as complainant well knew that said George had qualified as said administrator before the filing of the bill. Aind here it may be noted that the bill was filed the same day that letters were granted to Simmons. A receipt showing the payment to attorneys of George is made an exhibit to the answer. A duly certified copy of the petition, bond, oath, and letters of administration of said George are also made exhibits, which show that he was duly appointed as such administrator by the chancery court of Leflore county on October 2, 1903, over five months before Peter Simmons was appointed as administrator by the chancery court of Hinds county, in another district. The lower court decreed that Peter Simmons, administrator, should receive this $500 and interest from defendant, from which decree defendant prosecutes this appeal. The evidence demonstrates beyond cavil or controversy that on March 1, 1904, said defendant, by its secretary and treasurer, E. E. Perkins, issued its check to said George, administrator, in payment of this $500 due on this certificate (the original check being produced), and that same was paid March 28, 1904, as shown by the receipt of the attorneys of said George to said association. Some attempt was made to show that E. E. Perkins, the secretary and treasurer of said association, had notice of the appointment of said Simmons as administrator before this $500 was actually paid, but, in our opinion, there was a failure to do so; but even if this had been shown, we do not think appellant should be required to pay it again to appellee, who was not appointed administrator for more than five months after a court of competent and full jurisdiction had, in strict accordance with our statutes, appointed said George as administrator of said estate, as the pleadings and [475] proof both, clearly demonstrate. Indeed, it is virtually, if not fully, admitted by counsel for appellee that this $500 was paid at the time named'to said George, as such administrator, or to his attorneys; but they contend that the appellant should be compelled by a court of equity and good conscience to pay a second time to said Peter Simmons, administrator, because they say that a technical rule of pleading has been violated, in that defendant below did not specifically deny by a plea verified under oath the representative character of said Simmons as administrator of said estate, as required by Code 1892, § 1797. We cannot obtain our consent to lend our indorsement to this contention. The answer is in fact sworn to by E. E. Perkins, as secretary and treasurer of the defendant association, but counsel contend that he is not the proper officer to swear to same, under Code 1892, § 534. That section provides that “’The answer of a corporation need not be under its seal, but shall be sworn to by its president, general manager or superintendent, or other general officer, unless an answer under oath shall ... be waived in the bill.” E. E. Perkins is shown to have been the secretary and treasurer of said association, and the custodian of the records and vouchers, so far as the money is concerned, and is a “general officer,” within the contemplation of said statute. And answer under oath is also specifically waived by the bill in this case; and while this waiver, in and of itself, does not affect the requirement of sec. 1797—Wanita Mills v. Rollins, 75 Miss., 253 (22 South. Rep., 819)—still, aside from this, the question here is not as to the representative character in which the complainant sued — not that Simmons was not at some time appointed as administrator of the estate of Robert Wells. This is not the question that defendant is litigating with the complainant, but it is that the defendant, prior to any notice of the appointment of Simmons as such administrator, had already paid this $500 to another administrator of said estate, who had, over five months before Simmons’ appointment, been duly and legally appointed, and [476] Rad qualified as administrator try and under a decree of a court of competent and full jurisdiction, and that said decree showed all of the necessary jurisdictional facts under Code 1892, § 1850, and that, therefore, the defendant should not he com-joelled to again pay this $500 to another party appointed after-wards as administrator by a court of concurrent jurisdiction in another district, and thus be made to pay the same debt twice. The defendant’s answer and exhibits fully set all of this out, and, as said before, it makes an exhibit to its answer a certified copy of the petition, oath, bond, and letters of administration of said W. 0. George. These exhibits do show, specifically and fully, all of the proper and necessary jurisdictional facts authorizing the chancery court of Leflore county to appoint said George as administrator of the estate of Robert Wells, and the matter Avas adjudicated by said court. As counsel for appellee admits, there can be but one administrator of the estate of a decedent, under the- law; and as said George was duly and legally appointed the administrator of this estate by a court having full jurisdiction to do so, the defendant properly paid the $500 to him, and we know of no rule of pleading or law in this or any other state which would warrant ns in compelling said appellant to again pay this very same debt to another alleged administrator. It will be noted that the petition of Simmons for letters of "administration did not disclose to the chancery court of Hinds county, to which he applied for said letters, that letters of administration on the same estate had, several months before, been granted to said George by the chancery court of Leflore county, presided over by a different chancellor. Reversed and remanded.