Williams v. Williams ( 1871 )

Tarbell, J.:

This case comes to this court by appeal from the probate court of Chickasaw county upon exceptions to final account and decree in the settlement of the estate of Esther Williams, deceased. Several causes of error are assigned, as follows:

1st. The court erred in striking out find disallowing the sum of $1,354 by administrator paid to Samuel C. Williams for his probated claim, as is shown by voucher No. 7 to said account.

2d. The court erred in charging the administrator for so much good money, the sum of nine hundred dollars, which was contemplated to be paid in Confederate money as per charge made against himself for the hire of negroes.

3d. By rendering final balance liability against the administrator in good funds for the sum of $910, when the proofs show that all the current funds that ever came into the hands of the administrator is the $10 cash found and obtained, belonging to decedent at the time of her death.

The court erred in rendering a second final decree in this:

1st. That after rendering its final decree in the cause, after disposing of the whole issue joined by the parties litigant (the administrator on the one side and the exceptors on the other), the court (without notice to other par ties in interest) entertained a petition filed by the defendants in error for the recovery of attorney’s fees, and rendered another final deeree, or judgment in favor of Allen White, and McFarland and McIntosh, to be paid out of the funds found in his hands belonging to the heirs jointly.

By reference to the record, it appears that S. O. Williams, the administrator, paid to himself the sum of $1,354, being the amount of a note and interest, probated as executed to and due him from the deceased. The note is for $954, dated December 15, 1858, and signed by a X cross, “ her mark,” without witness. The payment of this note is the subject of the first exception, which alleges that the note is void and without consideration, having been given for the difference in the value of slaves exchanged by and between the administrator and the said Esther, contrary to and in violation of the will of Samuel Williams, deceased, and husband of Esther.

Referring to the.will of Samuel Williams, deceased, it appears that therein in 1856, he directed a division of his property by appraisers, into lots, to be distributed by “ drawing,” his wife, Esther, being one of the distributees ; and the will declares that “ each lot drawn to each name shall be that heir’s property, to be good unto them, their children, and their children’s children, and at the death of my beloved wife, Esther Williams, the property willed to her to be equally divided between the following named heirs,” etc.

S. 0. Williams drew a lot valued at $2,633, which was $954 above his distributive share, while Esther drew a lot valued at less than her share. And it is alleged by the exceptors that the note from Esther to him, if given at all, was for this difference in exchange of slaves thus drawn in lots. This note was probated on the testimony of the administrator and payee alone, and, as already stated, paid to himself. It appears further, that the administrator charged himself with the sum of $900 for the hire of the slave, Martin, who was drawn by Esther, and the exceptors contended that this was a virtual abandonment of the exchange, and that the administrator was thus estopped from setting up the note as a valid claim against the estate. If not admitted, we do not understand the administrator to deny the allegation of the consideration of the note nor that the slave whose hire he charged to himself, and the slave drawn by Esther were one and the same.

The probate court sustained the exception, and this action of the court constitutes the first assignment of error.

As the cause will be remanded, however, the questions surrounding the note will be considered open upon the rehearing, including its execution, consideration, etc., for further examination.

It appears from the record, that having heard the parties,, the administrator and the exceptors, the probate court restated the final account, and entered a final decree in the cause, when, without notice to those interested, upon the petition of one of the parties, the court made a second final decree, directing the administrator to pay t© the counsel of one of the parties a sum named for services in the cause. This 'ex parte action of the court without notice to those having a right to appear to contest, and interested in contesting the allowance to counsel, was highly improper. This-assignment of error is well taken.

Errors are alleged in the rulings of the court upon the-pleadings, but so entirely imperfect and inartistic is the record in this respect, we are unable to obtain any correct understanding of the rulings referred to. It is, however, immaterial, as the case must be sent back for the reason already given.

This disposes of the alleged errors. Several exceptions were taken and passed upon by the court below, not referred to in the assignment of errors. As to exceptions to vouchers five and six, embracing an aggregate of «$5,. we are unable from the record to determine their merits.

In relation to the sale of the personal property of the intestate for Confederate currency, we refer to the laws of 1865, chap. XI, p. 142, pamphlet acts, sec. 4, which is as follows:

"Be it further enacted, That where any executor, administrator or guardian has heretofore received, on account of said estate or ward any Confederate money, or other depreciated money or currency, in due course of business, or in pursuance of the statutes of the State of Mississippi at the time of receiving the same, and when such executor, administrator or guardian, shall show to the satisfaction of the •court that he has been unable to use any or all of the money so collected by him, said executor, administrator or guardian •shall only be chargeable with the actual value of said money on hand, not used by him as aforesaid.”

As to the sale and distribution without the order of the court referred to in the record, and discussed by counsel, when this cause is again heard in the court below, there will be no difficulty in protecting the rights of minor heirs, as over the whole case the chancery court of Chickasaw county will possess ample power to do justice and bestow equity to all concerned — the provisions of the statute being full, clear and explicit on all the subjects discussed by counsel, or ■likely to occur in the controversy.

In this connection, we feel compelled to complain of the confused and perplexing record before us as to the arrangement and numbers of pleadings, exceptions and amendments, rendering some of the references in the assignment of errors and arguments, utterly unintelligible. Frequent and unnecessary repetitions occur without proper distinctions and designation by numbers, and otherwise tending only to confuse, requiring wholly unnecessary labor, and consuming time demanded in other causes.

We refer to this subject, not because the record before us is exceptional, but because our patience is nearly exhausted with this class of records.

The judgment of the court below is reversed, and the cause remanded for further proceedings.