Prestige v. Pendleton ( 1854 )

Mr. Justice HaNDY

delivered the opinion of the court.

This was an action of assumpsit in the Lawrence circuit court, brought by the plaintiff in error as administratrix of Samuel Prestige, deceased, upon a promissory note made by the defendant in error, payable to Samuel Prestige, administrator of the estate of Zebulon E. Pendleton, deceased or bearer.

The declaration contains three counts, the second of which only is necessary to be considered. That count, after stating the execution of the note by the defendant to Samuel Prestige, administrator of Zebulon E. Pendleton, deceased or bearer, avers that upon the decease of the said Samuel Prestige, (the payee,) the plaintiff, his administratrix, made and rendered to the proper probate court, a final account of his proceedings as administrator of Pendleton, and that thereupon the probate court made a decree of final settlement of said administration accounts, by virtue of which the plaintiff, as administratrix of Prestige, was authorized and allowed to retain and collect the note sued on, for the use and benefit of the estate of Prestige.

To this count there was a demurrer, which was sustained; and this presents the only question for consideration here.

It is insisted, in support of this judgment, that the note was assets in specie in the. hands of Prestige, administrator of Pen-dleton, and, as such, upon his death, passed to the administrator- de bonis non of Pendleton. This is true. But the question is, Was it not competent for the administratrix of Prestige, in settling the final account of his administration of Pendleton’s estate, to account for that note to the court, and to be authorized by the court to retain and collect it for the benefit of Prestige’s estate? We think it clear that such a settlement could have been legally made and such a right given.

There does not appear to. have been at that time any administrator de bonis non of Pendleton’s estate; and under the decision of this court in Steen v. Steen, 25 Miss. R. 513, the administratrix of Prestige had the right to settle his account as. administrator of Pendleton. In making that settlement, she may have accounted and paid to the representatives of Pendle-ton the full amount of the note; she may have been allowed to retain and appropriate it to the commissions due the administrator, for the full amount or for part of it, the surplus being-paid into court; or for advances made by the administrator on account of the estate; or there may, perhaps, be other circumstances, under which the allowance -would be justified. The note was but assets of the estate, and the court had the same power under certain circumstances to allow the appropriation of the note to the just and legal claim of the administrator against the estate, that it had to appropriate money in his hands to such a purpose. The reason for the allowance does not appear; but as it was clearly within the power of the court, the presumption is that the power was exercised properly until the contrary be made to appear.

This conclusion is sanctioned by the cases of Scott v. Searles, 7 S. & M. 498, and Searles v. Scott, 14 Ib. 94.

The decree of the court, if the facts justified it, being, therefore, within the jurisdiction of the court, the right to the note thereby passed to the plaintiff; and the note being payable to bearer, a perfect legal title to it passed to the plaintiff by delivery.

The judgment is reversed, and the cause remanded.