Powell v. Burrus

HARRIS, J., delivered the opinion of the court. In this case, four grounds of error are relied on by counsel for the appellants. 1st. An abuse of its discretion by the Probate Court, in allowing four per cent, commissions to the administratrix. 2d and 3d. The want of jurisdiction in the Probate Court, to render judgment and award execution against the distributees, for an- amount found to be due her from them, in the course of administration. 4th. The allowance of commissions, before final settlement. The first ground assumed, both upon an examination of the cases .adjudicated .in this court, and upon -principle,-we think, is wholly untenable, under the circumstances before us. — 613 — In the case of Merrill v. Moore’s heirs, 7 How. R. 271 (which was an appeal from the judgment of the Probate Court, allowing the administrator ten per cent, on the appraised value of the estate, $26,814, instead of on the whole amount of the estate administered, which was $94,863), the court, after remarking, that “it is wrong to impose onerous duties upon men, and to deny them compensation for their discharge, and that such a rule would tend strongly to make them negligent in the performance of trusts, or to make them seek indemnity in some other way,” proceed to determine, “that the allowance, in this case, should be made to extend to the whole estate administered.” This opinion was referred to, and approved, in the case of Shurtliffe v. Witherspoon, 1 S. & M. 621. In the case of Satterwhite v. Littlefield and wife, 13 S. &. M. 307, when the abuse of its discretionary power was directly the subject of discussion, the court said: “It is so much a matter of discretion, that we should not be disposed to interfere with its exercise, unless where there has been manifest abuse.” And in the later case of Cherry v. Jarratt, 25 Miss. R. 221, this court announced, that “ only in cases of flagrant abuse of the discretion vested in the Probate Court by the statute, would they-interfere with its judgments.” In the case now under consideration, four per cent, was allowed the administratrix; and it is insisted, that this allowance, “ in view of the testimony,” is such an abuse of its discretion by the court below, as calls for the interposition of this court. If we should look alone, to the evidence of the single witness who undertakes to value the services of the administratrix, we should find ourselves called upon to reverse, not only the judgment of the Probate Court, but the act of the legislature also. If it be true, as this witness testifies, “that $500.was' exorbitant pay,” for administering, and successfully settling and distributing, an estate amounting to more than $70,000, in about ten months or less, then, not only this Probate Court, but the legislature, have been egregiously mistaken in their estimate of what is due to this class of public offices, for the least service. One per cent, is the smallest amount the legislature permits the court to allow: this small sum would greatly exceed the sum deemed by this witness “ exorbitant pay.” — 614 — We think, from the evidence in the record before us, that this witness is scarcely less unfortunate in his statement as to the “incompetency” of the administratrix to conduct the trust she had assumed, in the exercise of her legal rights. The record shows, that she took charge of the estate on September 29th, 1857. Her first step in the intricate, responsible, and important business committed to her care, is not only evidence of her prudent caution, but is worthy of more frequent imitation. Knowing that she had not made legal science either her study or practice, she resorted to the aid of professional gentlemen, skilled in both; thereby protecting herself and the estate, as well as these distributees, against the probability of loss, from her ignorance of legal rules. It is quite probable, that for this necessary aid, to procure which commissions are allowed her by law, she was compelled to expend as much, or perhaps even more, than the “ exorbitant” sum of $500. Immediately on her appointment, at September term, 1857, she executed bond. Commissioners were also appointed. The inventory and appraisement were made out, and returned to the Probate Court, on the 14th October, 1857, and all necessary and proper steps speedily taken for an early settlement of the estate. The crop was gathered, and, under an order obtained the very day she was appointed, judiciously sold (181 bales), and faithfully and promptly applied to the discharge of the claims of creditors, pro tanto; and on the 23d day of June, 1858, she made application to the court for notice to the distributees, preparatory to a final settlement, according to an account then filed, and now in the record before us. This account shows a full administration, except as to the payment of certain debts, which these distributees, appellants, obligated themselves to pay, upon distribution made in December previous (1857); they having executed refunding bonds, according to law. The idea made so prominent, both in the testimony and in the argument, that because the administratrix did not personally undergo the labor of administration, but chose to rely on competent agents, she should, therefore, only be entitled to compensation commensurate with her personal service, is certainly novel. According to this reasoning, if she had secured no legal aid, but pur — 615 — sued the more usual method of blundering from error to error, through a long course of administration, ending in ruin to her and disaster to the estate, she would indeed have earned commissions, to the utmost limit of the court’s discretion. But it is not to compensate for the amount of trouble suffered, or superinduced, that the law makes provision; it is to secure responsibility, fidelity, careful and prompt attention to the trust imposed. That the ad-ministratrix, by the assistance she invoked, and by the diligence and promptness employed, rendered her burden light, and the time of her employment short, was not more beneficial to her, than to the interests of the estate, and especially of these distributees. We think, therefore, the allowance should not be disturbed in this court. It is next insisted, in the second and third assignments of error, that the court had no power to render judgment and order execution against appellants, for the balance found to be due the admi-nistratrix from them, on settlement. This point, involving to some extent, the jurisdiction of one of the most important courts created by the Constitution, has not been free from difficulty. The Constitution declares, that “ a Court of Probates shall be established in each county of this State, with jurisdiction in all matters testamentary, and of administration,” &c. • This jurisdiction was certainly intended to be full, complete, and exclusive, as to the “ matters ” thus confided. It was intended to be full, so as to embrace all subjects, all parties, all cases, necessary to be included in its action, for the proper adjudication and determination or settlement “ of matters testamentary, and of administration.” It was designed to be complete, so as to afford adequate remedy, exact justice, and ample relief, to all parties, necessarily affected by its proceedings. It was made exclusive, by the very nature of the grant, that it might meet with no delay, obstruction, or conflict, in adjudicating and settling “ all matters testamentary, and of administration.” The grant of this general power to the Court of Probates, impliedly draws to its aid every incidental power and authority, necessary to the proper discharge of its important functions. Keeping in view these objects of this provision in the Constitution, — 616 — and the means necessary to accomplish them fully and successfully, let us inquire whether they embrace the case under consideration. Let it be premised, that from the case of McCoy v. Rhodes, 7 How. R., to the late case of Rill v. Hardy Williams, 34 Miss. R., we find no precedent which furnishes us authority for denying the jurisdiction claimed in this ease. Here then, are parties interested in the subject-matter for determination, who have been reached by the process of the court, and are legally in its presence. Here is a “ matter of administration,” — a final account, — between parties interested therein, and before the court, upon regular citation, for that purpose. Here the appellants (distributees) still further submit themselves to the jurisdiction of the court, by admitting the statements contained in the petition, and the correctness of the account filed, except in the single matter of commissions; to the allowance of which, they file formal exceptions, invoking the judgment of the court, in their favor, on the issue thus made between them and the administratrix. The record shows, that the whole estate had been previously distributed by their procurement, and without the authority of the court; and that they had each received one-third thereof (their full distributive share). That they had possessed themselves thus of property in the course of administration, and liable to the payment of its expenses, as well as the debts of the estate, by a pledge to the administratrix to settle such debts and liabilities. Under this state of facts, the appellants claim, that they had a right to invoke the jurisdiction of the Probate Court, to deprive the widow and administratrix of the allowance for commissions, which she asks, and without the settlement of which, this matter of administration cannot be adjusted, and the estate finally closed; yet they deny its power over them, to compel a compliance with the very adjudication they invoked, on the issue they had made. They claim the privilege of speculating on the chances of a judgment in their favor, without the risk of liability to a judgment against them; that they may create a litigation in the Probate Court, upon their direct interference, and for their benefit, involving costs and expense; and yet, when found in the wrong, by the judgment of the court, in “matter of administration,” it has no power to pronounce that judgment, and enforce its execution. — 617 — Can such a monstrous assumption, sucb an unjust, unreasonable pretension, which, defies the power of the court except when employed for their advantage, and thus thwart its beneficent interposition in the settlement of estates, at the very moment of its final action, be tolerated, without destroying its power and its usefulness, in terminating litigation, in matters testamentary and of administration ? We think not. Having acquired full jurisdiction of the subject-matter of litigation, and of the parties, and made the necessary investigations to settle the litigation between them, we think justice and sound policy require, that the litigation should be fully considered and adjudicated in that jurisdiction. And such we believe to be the plain and obvious intention of the provisions of the Constitution under consideration. If further reasoning were wanting, the indication of legislative opinion on this subject, would be at least persuasive towards the conclusion at which we have arrived. By the 31st article of the 60th chapter of the Code, p. 431, it is provided, that “ whenever the Probate Court shall render an order, judgment, or decree for the payment of money against any executor, administrator, or guardian, or any other party litigant therein, a compliance with such order, judgment, or decree, may be enforced by process of fieri facias, returnable to a term not less than six months from its teste, which may be levied on the land and goods and chattels of the defendant or party.” This provision precisely covers the case in controversy, and, we think, gives just efficiency to the constitutional powers of the Probate Court. The last assignment of errors, that commissions cannot be allowed until final settlement, is fully answered by the statute. Code, p. 452, art. 109. Let the judgment below be affirmed.