Giglio v. Woollard , 126 Miss. 6 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

On the 13th day of November, 1918, Mrs. M. O. Saia filed a petition in the chancery court for letters of administration upon the estate of J. C. Saia, alleging that he died intestate on the loth day of October, 1918, and that petitioner was the only heir of the deceased, being his wife and only heir at law, alleging that deceased owned a house valued at four thousand, five hundred dollars, which was encumbered to the extent of four thousand dollars, and .personal property consisting mainly of groceries and fixtures amounting to one thousand, two hundred fifty dollars, and praying to be appointed administrator of said estate. Letters of administration were granted by the clerk on the 14th day of December, 1918, which act of the clerk was approved by the court at the next sitting thereof. On the 2d day of January, 1919, the administrator, Mrs. Saia, filed a petition in the court asking the approval of the sale of the stock of goods and fixtures and for a. contract of lease for five years of the storehouse, said house to be leased at thirty-five dollars per month, which petition was approved and allowed by the chancellor ih vacation on the 12th day of January, 1919. Subsequently Mrs. Saia was removed as administrator, and the appellee, Woollard, was appointed administrator in her stead. And on the 29th day of April, 1920, Woollard and certain creditors of the said J. C. Saia filed a petition in the chancery, court setting forth the foregoing proceedings and averring that the order allowing the said sale was improvidently and improperly presented to the court, and that the same was signed by the then chancellor without due regard for the best interest of the estate of the deceased, in that the said order was signed by the chancellor without any evidence being produced and on the assumption that the making of the lease contract therein referred to was for the best-interest of the estate. It was further alleged that the making of the lease for five years at thirty-five dollars per month is not for the best interest of the estate; that the said building-should now be drawing sixty-five dollars per month and would probably rent for seventy-five dollars per month at the time of the filing of this last petition; and that it was for the best interest of the estate to revoke and cancel the previous order of this court and permit the present administrator to make proper contract for renting said property.

It is further alleged that the contract of the rental is' void because Mrs. Saia, the administratrix, was at the time a minor and had no right or authority to make this or any contract, that she was approximately seventeen years of age at the time, and prayed for an order authorizing the petitioner to file any suit or take any further step necessary for canceling said lease, and praying for general relief.

The court first entered a decree granting the prayer of this petition without having made Giglio a party. This decree was entered on the 17th day of May, 1920. Thereafter, on the 22d day of June, an order was entered directing the cause to be continued and service to be had upon Giglio to appear on the 29th of June, 1920, to show cause why the order should not be made final, and why his contractual right should not be set aside and canceled. Giglio appeared and moved to strike the order of May 17th from the files because the court was without power or authority- to make and enter said order; second, that the order authorizing the lease made January 12, 1919, was a final order.

There was also a petition filed setting forth the order of May 17th and denying the allegations of the petition upon which said order was made and setting forth that the said lease contract was approved by the chancery court, and that the price paid therefor was the best that could be obtained at that time, that the said contract with Mrs. Saia was made in good faith and was a fair and reasonable price at the time, and prayed for the cancellation of the order of May 17th and asking for the reinstatement of the original order approving the contract..

The petition last named was supported by affidavits of a number of people stating that the price paid for the rental of the property was a fair price at the time the contract was made.

The cause was taken under advisement, and on the 27th day of September, 1920, a decree was rendered granting the relief prayed, for in the petition of Woollard, the administrator. This decree was based'upon the theory that Mrs. Saia at the time of making the contract ivas a minor and incapable of making the contract, as shown by the following paragraph of the decree:

“That the said lease contract now held by the said C. Giglio be, and the same is hereby, canceled and for naught held, said contract having been heretofore entered into by M. C. Saia, who was at the time a minor, pursuant to a decree of the chancery court aforesaid entered January 12, 1919, and a part of this record, which decree of this court is declared to be void and of no effect, no person of legal age having been before the court at or about the time of the entering of the said decree, arid all of the heirs of the deceased J. O. Saia being not of legal age and being not represented before the court either in person or by guardian or next friend.”

The proof taken on the behalf of Woollard, the administrator, shows merely that the property was worth more than thirty-five dollars per month rent at the time it was made, and that it would then (at the hearing) bring from sixty dollars to seventy dollars per month. The entire petition for the sale of the goods and the lease of the store is not attacked, and no effort is made to disturb the sale of goods, and no effort is made to show that there was any fraud in the proceeding nor was there any proof that J. C. Saia left any heirs other than his wife, who administered on said estate. Qn the hearing it appeared that Mrs. Saia was only eighteen years of age, and that her father applied to be made a party to the petition, which was allowed by the chancellor, though Ms name was not inserted as a party in the petition. It appears that the contract was made in good faith by Giglio, and that he gave up a position as railroad employee at Viclcsburgh to move to Shaw, Miss., and take charge of said stock of goods and storehouse, and he had been in possession of and conducting the business for more than twelve months carrying out said contract.

We think the chancellor was in error in entering a decree to set aside this rent contract. The chancery court has jurisdiction both of the administration of estates and of minor’s business, and it appears that Mrs. Saia is the only heir of J. O. Saia, and she was before the court as administratrix, and the court had jurisdiction and power to authorize the contract made. The fact that Mrs. Saia was under the age which would authorize her to become administratrix does not avoid a contract made with the sanction of the court. The leasing of property of the estate of deceased persons is often an important factor in administering the estate to1 the best advantage. A contract making such lease when approved by the court is valid and binding, and cannot be avoided except as any other contract may be. New people would care to enter a lease contract if at any time the court could set aside the contract because the lessee had obtained a bargain in the securing of said contract. The lessee would have to bear the loss if the contract should prove unprofitable and should be allowed to gain if it proved profitable. The proof in the case does not amount to a fraud or unfairn'ess. The reasonableness of rentals at the time is, when considered most favorable-to the appellee, a matter about which reasonable business men differ. This does not authorize the rescission of the contract. The appointment of an administrator who has not the necessary qualification is not absolutely void, but only voidable, and the acts of the de facto administrator acting under an appointment of the court is valid to the same extent as the act of a qualified administrator. He is subject to removal, but acts performed between the appointment and the removal are valid, unless they are subject to attack for some matter which would defeat the act of said administrator if he were qualified lawfully to act. Davis v. Miller, 106 Ala. 154, 17 So. 323; M., K. & T. R. R. Co. v. McWherter, 59 Kan. 345, 53 Pac. 137; Wimberly v. Boland, 72 Miss. 243, 16 So. 905.

The decree will be reversed, and the petition dismissed.

Beversed and petition dismissed.