Alexander v. Herring , 99 Miss. 427 ( 1910 )

Mayes, O. J.,

delivered the opinion of the court.

The trial court properly sustained the demurrer and dismissed the declaration. If any liability exists under the contract sued on, it is the liability of L. W. Herring, individually and personally, and not a liability of the estate which he represents as administrator.

An administrator is a statutory trustee, whose duties and powers are fixed by law. These duties and powers cannot be enlarged by a decree of the chancery court, and, if the chancery court by its decree undertakes to confer upon an administrator powers which are denied under the law, the decree of the court is a nullity.

A chancery court can no more authorize an administrator to engage in business with the funds of the estate than it can make a decree declaring that the funds of the estate shall be the property of the administrator. In either case the decree goes clear beyond the powers of the court, and beyond the legal right or duty or purpose of an administrator, and such decree is a nullity.

One of the things which an administrator cannot do. in the absence of a statute authorizing it, is to engage in business of any kind. The duty of an administrator consists in protecting the estate, winding up its affairs, collecting its assets, and paying its debts, and finally turning over to the court the net estate, for the purpose of having it distributed to those entitled to it. The heirs are not to have their property hazarded by allowing the administrator to venture it in business, however honest may be the purpose of the administrator or bright the prospect. In winding up a decedent’s business, some discretion is allowed an administrator in a proper case; but it must be allowed in winding up, and not allowing the administrator to engage in a wholly new and independent business.

Sections 2057 and 2058, Code of 1906, expressly authoiv ize the administrator to deal with growing crops and to cultivate or rent farm land. But, whatever powers an administrator may ordinarily have, a discussion of them is not involved in this case, because it is clear that the contract authorized by the chancery court to be made by the administrator was beyond the power of the court, or of the administrator, and is a nullity. The decree of the court authorized the administrator to buy hardwood timber and operate a sawmill; in other words, to engage in a milling business. The contract derives no sanctity from the fact the court authorized it, because it was beyond the power of the chancery court. In the case of Farley v. Hord, 45 Miss. 6, this court expressly held that, in the absence of a statute authorizing it, an administrator has no authority to incur debts binding on the estate, except for incidental expenses in due course of the administration of the estate. The decree of the court being void, it may be attacked anywhere, either collaterally or directly, and is no more than if such decree had never been rendered. Affirmed.