Portevant v. Neylaus , 38 Miss. 104 ( 1859 )

Handy, J.,

delivered the opinion of the court.

This action was brought upon an executor’s bond, in the name of the judge of probate, for the use of Buckley, assignee of certain distributees of the testator, to recover the amount found due by the Court of Probates, from the executor to the assignee, in virtue of the assignment of the distributees to him, and decreed to be paid to him upon his application to the court for that purpose. The declaration sets forth the judgment of the Probate Court, ordering payment to him as assignee of the distributees, and founds his claim upon that judgment.

It is now insisted that the declaration shows no right of action at law, and that the defendants’ demurrer to the replication to the sixth plea should be extended back to the declaration.

The ground of objection to the declaration is, that the plaintiff’s claim, as stated in it, is founded on a judgment of the Probate Court, rendered in his behalf as assignee of certain of the distributees of the testator, by which the executor was ordered to pay to him as assignee, the amount claimed in the declaration. This judgment is alleged to be void, for want of jurisdiction in the Probate Court to render such judgment in behalf of the assignee, who was a stranger to the administration.

It is well settled by numerous decisions of this court, that the Probate Court had no jurisdiction to decree a payment by the executor to an assignee of the distributees. Hill v. Hardy, 34 Miss. 289; Dixon v. Houston, 35 lb. 636; Houston v. Williams, 36 Ib. 187; Read v. Brown, Ib. 330. It is held in these cases, that the court had not jurisdiction to decide the question of assignment, and the question arose upon a controversy as to the assignments. But the principle upon which they proceed is, that the assignee is a mere stranger to the jurisdiction, and not within the power of the court. In decreeing a payment by the executor to an assignee of a distri-butee, the court necessarily takes jurisdiction of the question of the validity of the assignment; and that, it is expressly held, that the court is incompetent to do; because the assignee is in nowise connected with the administration of the’estate. And upon the same principle, it is held in the case last cited, that the court can only recognize the right of the distributee, and decree payment to him.

When a party comes into the Probate Court, and claims a decree in his favor as an assignee of a distributee, he asks the court to do what under no conceivable state of case it has the power to do. His very application shows that he is a stranger to the jurisdiction, and cannot be entitled to what he seeks. A decree in his favor must therefore necessarily be void, and incapable of being rendered valid as the foundation of a legal right, under any supposable circumstances.

The declaration in this case was, therefore, radically insufficient, and the judgment must be reversed, and a judgment rendered for the plaintiffs in error.