Murff v. Frazier , 41 Miss. 408 ( 1867 )

Ellett, J.,

delivered the opinion of the court.

The first error complained of is not well founded in point of fact. The petition is in the joint names of husband and wife.

The proceeding is, however, erroneous in other respects. A distribution cannot be had on the petition of one of several distributees without making the co-distributees parties. We have recently ruled this point in the case of Munday v. Calvit, not yet reported. This question was not involved in the case of Benoit v. Brill, 7 S. & M. 32, and a contrary principle had been previously asserted in Shattuck v. Young, 2 S. & M. 30. At all events the question is now settled.

Again, it is admitted that the entire estate consists of notes given by purchasers for property sold, and on which suits are now pending. No distribution of these assets could be decreed, unless all the parties interested would consent to receive them in their present condition. Allison v. Abrams, MS.

The decree of the court below will be reversed, and the petition dismissed.