Murdock v. Washburn , 9 Miss. 546 ( 1844 )

Mr. Justice Thacher

delivered the opinion of the court.

This cause appears here by appeal from the decree of the probate court of Yazoo county.

A petition was filed to the March term, A. D. 1842, of the probate court of Yazoo county, by the appellees, Asahel W. Washburn and Leonora, his wife, claiming their distributive share of the estate of John Martin, late of said county, who deceased, intestate, sometime in the year 1831, leaving, with others, the said Leonora his heir at law. The petition represented that the said estate had passed through the hands of an administrator, and several successive administrators, de bonis non, and at the date of the filing of said petition, was represented by the said Asahel W. Washburn, as administrator, de bonis non, and remained unsettled. The petition continued in said court unanswered and without judgment thereon, until the June term thereof, A. D. 1842, when the appellees filed their amended petition, containing, among other new allegations, the statement that the said Asahel W. Washburn, the administrator, de bonis non, aforesaid, since the filing of the original petition in said cause, had resigned his office of administrator, as aforesaid, of said estate, and that one Andrew Murdock, the appellant, had been appointed and qualified in his stead. To the original and amended petitions, the defendant below filed his answer, in the nature of a cross bill, and set forth that his predecessors in the administration of said estate, had contracted debts in the discharge of their office, to the amount of six or seven thousand dollars, which he viewed as claims upon the assets of said estate, and insisting that if the court below granted the prayer of the petitions, it should require of the distributees in said petition, to give the refunding bond, as described in the statute of distribution. To this answer and cross bill, appellees demurred, which demurrer was sustained by the court below, and a decree of distribution made, but reserving'to appellant the privilege of holding possession of the property of said estate, until the 1st of January, 1843, for the purpose of getting the then growing crop.

The foregoing narrative of facts calls for an opinion upon the rights of the distributees of an estate under administration, the position of administrators pending a petition for such distribution, and the duty of a probate court in decreeing such distribution.

A statute of this State, (see How. & Hutch. 406, § 70,) makes it imperative upon a probate court to grant a rule on an administrator, to make distribution of an intestate’s estate, according to law, any time after the expiration of twelve months from granting letters of administration on such estate, upon the petition of any person entitled to distribution. It clearly appears from the record, that many years had elapsed since the grant of letters in the estate in question, and likewise that appellees were persons entitled to distribution.

Now this court will not undertake to say whether the creditors before spoken of, have or not, in whole or in part of their demand, a claim upon any portion of the assets of said estate. Those creditors are not here represented, and the character of of their claim is heard of alone from the administrator de bonis non, and some of the distributees of the estate whose interest it is not to represent, or who may not understand their claims as possibly they may exist. Neither contingency can affect this decision.

We have seen that after the expiration of twelve months from the grant of letters of administration, the law permits and makes it incumbent on the probate court to compel the distribution of the estate to the persons entitled and praying for the same. But for the protection of creditors, as well as the administrator of the estate, it prefixes the condition that any such distributee shall enter into bond and security, conditioned to refund a due proportion of such distribution, to meet any debts of intestate that might subsequently make their appearance, and the costs thereon. The law, in no case, dispenses with bond of this kind, up to the period of the final settlement of the estate. Upon a final settlement of an estate, the necessity of such security ceases, and it is no longer required. Neither the administrator nor the distributees, nor the probate court, can be allowed to judge of that necessity or its probability, because the law has assumed to itself to fix a termination of that necessity, and has not stopped short of the final settlement of an estate. The language of the seventy-first section of How. & Hutch. Dig. p. 406, shows plainly this intention. It explains, if such were necessary, the antecedent section, number seventy. “ Provided,” it says, “ that nothing herein contained shall be so construed as to compel any distributee to give bond,” &e., “ after a final settlement,” &c., evidently demonstrating that in cases of distribution under any other circumstances, such bond shall be compelled to be given. Such bond and security being, then, a prerequisite, a condition precedent to distribution of an estate not finally settled, it must be embraced in a decree of the same. In the case under contemplation, a decree to this effect does not appear.

In another point of view, the decree of this record steps too far, and, as it works a prejudice upon the rights of distributees, we therefore notice the error. The court below added, “ and it is further ordered and decreed, that the said Murdock be permitted to retain the possession of said property, for the purpose of gathering the present ungathered crop, until the 1st day of January, 1843, and no longer,” &c. If the appellees were entitled to their distribution at all, they were entitled to it without delay. The “ crop growing at the time of” the intestate’s decease, and “ the' slaves employed in such crop,” are exempted from sale and division, under the circumstances enumerated in the sixty-third section of How. & Hutch. Dig. p. 402; but this record shows the reverse; that the crop mentioned in.the'decree, was not growing at the time of the decease of the intestate in question.

The statutes of this State, bearing upon the estates of decedents and the probate court, encourgage a final settlement of such property with-all deliberate speed. While delay might operate advantageously in an individual instance, as a rule, it would trench seriously upon the rights of heirs and distributees.

The decree of the court below, though right in sustaining the demurrer to the answer and cross bill of the appellants, is, nevertheless, defective and erroneous in not requiring from the appellees the bond and security to refund a ratable proportion of the distribution decreed, to meet any debts of intestate, which might thereafter make their appearance, and the costs thereon, and in permitting the appellant to retain the possession of the property of the estate, so far as decreed in distribution, until the 1st of January, 1843.

The judgment of the court below is therefore reversed to the extent above expressed, and the cause remanded for the further action of said court.