Mundy v. Calvert

IIabRis, J., delivered the opinion of the court. The defendants in error filed their petition in the Probate Court against the appellants and others, legatees and distributees of the estate of Littleton Mundy, deceased, praying distribution and payment to petitioners of the several sums of money specified in the petition as due to petitioners. There was answer filed for W. H. Baldwin, one of the executors, which was rejected by the court, because it was not sworn to. There was also a plea filed by the executrix and executors which was adjudged insufficient, and the said executrix and executors were required to answer further. The same judgment pronouncing the answer insufficient, recites that defendants having failed to answer said petition, upon motion, a decree pro confesso against the executrix and executors, was rendered; and thereupon, without further proceedings or proof, and with- ^ out an account, a final decree was rendered against the said George W. Sellers, Lucinda Mundy, and William H. Baldwin, for the sum of $11,190.21. This appeal is prosecuted to revise this judgment. The first, second, third, and fourth assignments of error, relate to the action of the court upon the sufficiency of the pleadings mentioned — the answer and the plea appearing in the record. In the case of Crowder et al. v. Shackleford et al. 35 Miss. R., pages 321-356, which was a proceeding for distribution under the statute, this court has said, “ that the statute does not contemplate or require the proceeding, by which the administrator’s accountability is to be ascertained, to be conducted according to the strict rules of pleading. In case of contro [189] versy as to the amount for which the administrator should account, it would be the duty of the court to require an account upon the same principles upon which a final account is taken; the object in both cases being to ascertain the true amount with which the administrator is chargeable; and no formality of pleading is necessary in taking such an account.” An^ ' i French v. Davis, 38 Miss. R., page 167, it is held that “ petitions for distribution of estates are informal, and not reg”1 by technical rules; and it is competent for either party to introduce such evidence, in proceedings of this character, as may be necessary to show what judgment shall be rendered, without regular and formal pleadings.” The fifth assignment of error is that the court erred in rendering final judgment against defendants below, without requiring a refunding bond with security, and without naming or specifying the security to be given. In the case before us a refunding bond is required by the decree, not specifying that security should be given, or the name of any securities. In the case of French v. Demis, already cited, it is held that a decree of this character is not erroneous, for not requiring a refunding bond. The effect of such a decree is to order distribution according to law, and if made before final settlement, it cannot be enforced until a refunding bond is executed. The sixth, seventh, eighth and ninth assignments of error relate to the insufficiency of the service of process. The statute requires that C£ the distribution of personal estate shall be ordered and made in the same manner, and subject to the same regulations as real estate descended.” Code, page 454, article 118. Article 117, on same page, in relation to “ real estate,” requires that “ the devisees, or heirs, or the guardians of such as are under age, residing in this State, shall be first summoned, before any decree and distribution is made;” and article 32, page 431, makes provision for cases of minors who have no guardian, or when the guardian is personally interested. TJnder these provisions no valid decree can be made for distribution, unless these parities in interest are properly summoned. [190] Iii tbe case before us, witb the exception of the executrix and. executors, who appeared in court, but few if any of the parties made defendants (and four of whom are minors), were duly summoned, as appears by the returns of the sheriff, on the different citations issued. The decree was therefore void on this ground. The tenth assignment relates to the decree. This was certainly erroneous. It was made without an account, and without proof of any sort, so far as the record shows, ascertaining the estate in the hands of the executrix and executors, to be distributed. In the case of Crowder v. Shackleford, 35 Miss., page 354, this subject is fully discussed, and the rules to be observed under this statute, in proceedings for distribution, are clearly defined. An account should have been taken, and the amount and character, and condition of the estate in their hands, and the distributive share of each of the parties interested, ascertained. And if, upon full investigation, with all the parties before it, the court should be of opinion that the same would be just and proper, and for the best interests of all concerned, then it is made the duty of the court “ to grant a rule upon the executor or administrator to make distribution according to law.” In the case of Crowder v. Shackleford, it is said that their “ terms grant a rule to make distributionimply that the funds subject to distribution, as well as the portions of the persons entitled thereto, have been previously ascertained and fixed. It was therefore error to grant this decree, without such previous account and ascertainment of the amount, character, and condition of the estate, as well as the portions of the persons entitled. It will be unnecessary to notice the last assignment relating to the plea, which was held' insufficient; because this plea relates to the negro children, the increase of the women, specifically devised “ with their increase.” As this property was not affected by the decree, so far as we are enabled to see from the record, the action of the court in reference to this plea did not prejudice appellants. [191] Let the.1 decree be reveesed, and cause remanded for further proceedings, according to this opinion.