West v. Gibbs , 42 Miss. 168 ( 1868 )

Shackelford, C. J.,

delivered the opinion of the court.

On the 28th of November, 1865, Washington D. Gibbs, administrator of the estate of Q. D. Gibbs, deceased, who was the administrator at the time of his decease (with Elizabeth D. West, administratrix) of the estate of J. E. West, deceased, filed his petition in the Probate Court of Yazoo county, alleging that the estate of J. E. West, deceased, was indebted to his intestate, Q. D. Gibbs, as administrator, in a large sum of money. Petitioner filed with his petition an account prepared by him from “ the receipts and disbursements ” in the papers of the deceased administrator, Q. D. Gibbs, and from the last annual accounts filed and allowed, of. said administrator, Q. D. Gibbs, of the estate of J. E. West, deceased.

This account of Washington D. Gibbs showed a balance due Q. D. Gibbs, as administrator of said estate, of $69,309.11. To this account various exceptions were taken by the plaintiff in error, some of which were allowed by the court; and a reference of this account was made to M. A. Jenkins, as a special commissioner, to re-state and report an account from the vouchers filed with W. D. Gibbs’s account, under direction from the court. The re-stated account by Jenkins was filed at the January Term, 1867.

Exceptions were taken to this account on account of an allowance by the commissioner to the deceased administrator of the account of Cuddy, Brown, & Co., for the sum of $35,795.60, as a charge against the estate of J. E. West, deceased.

Which account of Cuddy, Brown, & Co., plaintiffs in error contended, was never paid to Cuddy, Brown, & Co. by Q. D. Gibbs, as administrator of J. E. West, deceased; therefore not a legal voucher for said deceased administrator. The exception to the allowance of this item was not sustained by the court.

And to the allowance of this item of $35,795.60, plaintiffs in error excepted to the opinion and judgment of the court.

At the same term of the court a final decree was rendered against the estate of J. E. West, deceased, upon the re-stated account by M. A. Jenkins, for the sum of $37,356.09, in which execution was ordered to be issued against tbe estate of J. B. West, deceased, in tbe bands of plaintiff in error.

Before tbe rendition of tbe final decree in tbe case by tbe court, a motion was made by plaintiff in error to bare the amount declared to be due tbe estate of Q. D. Gibbs, as administrator, credited witb tbe account of Botchford, Brown, & Co., against tbe estate of J. B. West, deceased, partly created by West in bis lifetime, and Q. D. Gibbs, as administrator of tbe estate of West, showing tbat tbe account of Botchford, Brown & Co. against said estate bad been purchased by tbe plaintiff in error since tbe death of Q. D. Gibbs; this account amounted to $51,169.82 on tbe 1st day of September, 1865.

This motion was overruled by tbe court, and exceptions taken by plaintiff in error' to tbe ruling of tbe court in refusing to sustain tbe motion; exceptions were also taken to tbe action of tbe court in rendering tbe final decree against plaintiff in error, and henee tbe ease is here for revisal, by writ of error.

There are two assignments of error: —

“ 1st. Because tbe court below erred in overruling tbe exceptions to tbe account of Cuddy, Brown, & Co., charged in tbe administration account against estate of James B. West for $35,795.60, when tbe same bad not been paid.”

“ 2d. Because tbe court below erred in overruling tbe motion of distributees to have tbat account set off against amount due Gibbs on final settlement.”

Tbe testimony relied upon by plaintiff in error in support of these assignments, and embodied in tbe Bill of Exceptions, is voluminous. We shall only notice such portions of it immediately bearing upon tbe questions presented by these assignments.

James B.West deceased (upon whose estate Q. D. Gibbs administered) in tbe year 1856, and was indebted at tbe time of bis decease to tbe commercial firm of Cuddy, Brown & Co., of tbe city of New Orleans, on tbe first day of December, A.D. 1856, in tbe sum of $29,986.40, which account was regularly probated and allowed on tbe 22d of January, A.D. 1858, against said estate. '

Interest was calculated upon this account up to the 29th day of March, 1859, increasing the balance due thereby to $35,-795.60.

This last account of 29th March amounted to $35,795.60, interest up to that date, and was also sworn to by Shepherd Brown of said firm of Cuddy, Brown & Co., on the 7th day of April, 1859, who says, “that the annexed account against J". B. West is just and true, and that no pari has been 'paÁd, or any security or satisfaction for the same has been received : the sum of $35,795.60 is justly due.”

There is a receipt apparently attached to this last probated account in these words: —

“ Beceived from administrator of J. B. West, amount of this account, thirty-five thousand seven hundred and ninety-seven x<yV dollars, by shipment of cotton.

“ Cuddy, Brown & Co., in Liquidation.”

This receipt has no date, but it is charged up against the estate of J. B. West by the administrator, Q. D. Gibbs, on the 24th day of March, 1859, fourteen days before it toas sworn to by Shepherd Brown.

The account current of Botcliford, Brown & Co., rendered to administrator, Q. D. Gibbs, on the 24th March, A.D. 1859, against the estate of J. B. West, showed a balance due them on that day of $41,821.21, after allowing credits for all the cotton previously shipped to the house of Botcliford, Brown & Co., by the administrator, Q. D. Gibbs, from the plantation of the late J. B. West, during the years 1857 and 1858, cultivated by the administrator and administratrix, by order of the Probate Court of Yazoo county.

This large balance against the estate of West is accounted for by the transfer of the account of Cuddy, Brown & Co., on the 16th of February, 1859, to the books of Botcliford, Brown ■& Co.

The amount of the sales of cotton shipped to Botcliford, Brown & Co., by the administrator, Q. D. Gibbs, before that time, is credited to the estate; these are the same account sales which Q. D. Gibbs charges himself in his second annual account, appearing in the record:

In the second annual account of Q. D. Gibbs he charges the estate of West, with the $35,795.60, showing a balance due him of $42,424.82. At that time the estate owed Notch-ford, Brown & Go. $41,821.21, after they had deducted the credits on .account of the sales of cotton amounting to $27,155.23.

The whole amount of debits in the said account of Notchford, Brown & Co., at that time, amounted to the sum of $68,976.44, and the credits $27,155.23, leaving the said balance due them of $41,821.21.

It will be seen that the indebtedness of the estate of West is not diminished, but increased by the advances of the house to the administrator, Q. D. Gibbs.

Another account of Notchford, Brown & Co., against this estate, was rendered, showing a balance due them on the 20th of October, 1860, of $49,443.39; also an account dated the 29th of April, 1861, due Notchford, Brown & Co., in proof, showing a balance due them of $34,559.70. This balance was increased to $51,169.82, by interest account up to 1st April, 1865, when the same was assigned to the plaintiff in error by Notch-ford, Brown & Co.

This last account was proven to be correct by the testimony of Shepherd Brown, and Samuel Nanv, one of the late clerks of Notchford, Brown & Co.

The deposition of Shepherd Brown, one of the members of the late firms of Cuddy, Brown & Co., and Notchford, Brown & Co., is in substance — That the firm of Cuddy, Brown & Co. commenced business in the year 1855, and it expired in 1857, and was succeeded by the firm of Notchford, Brown & Co., of which firms he was a member. That, at the time of the death of James N. West, he was doing business with the house of Cuddy, Brown & Co.; he knew of no agreement between West and said firm, except a deed in trust, executed -by him and wife, dated the 24th April, 1855, to secure said firm of Cuddy, Brown & Co. a large amount due them, and to become due by the terms of said deed.

The said business was continued by the said administrator, Q. D. Gibbs, and E. D. "West, administratrix, after the death of James E. West.

The indebtedness of the estate of J. E. West to Cuddy, Brown & Co., amounting to $35,795.60, was transferred to the account of the estate with Eotchford, Brown & Co., as was done with all the accounts of planters due the house of Cuddy, Brown & Co.

All the cotton ever received from Q. D. Gibbs, administrator, was sold, and proceeds thereof credited to the said estate, as shown in the accounts current of Eotchford, Brown & Co. The receipt upon the probated account was signed by Shepherd Brown, “in liquidation,” as one of the survivors of Cuddy, Brown & Co. The body of the recei]3t was not written by witness, but by James N. Nevin. “It was not settled as therein stated. At the time of probating said account and receipt, the same was an item of the account of Eotchford, Brown & Co. against the estate of James E. West, to which firm it had been transferred long before the date of probating the same and receipt.”

“ As far as witness can recollect, the receipt was given to Q. D. Gibbs, administrator of said estate, to enable him to have the account examined and allowed in the Probate Court as a debt of the estate. The receipt was not necessary to effect a transfer of the account to the books of Eotchford, Brown & Co., but upon Eotchford, Brown & Go. receiving the account upon their books, Cuddy, Brown & Co. no longer had mi interest therein, and ceased to be creditors of said estate, all rights being vested in Eotchford, Brown & Co. . The receipt was so worded in order to enable Q. D. Gibbs, the administrator, to have the account examined and allowed as aforesaid. Gills desi/red the receipt to le so rendered for reasons of his own.”

All the cotton was received by Eotchford, Brown & Co., and credited to the account against the estate in Eotchford, Brown & Co.’s books; an item of which account was the “probated account of Cuddy, Brown & Co. None of the proceeds of the cotton was applied solely to the payment of Guddy, Brown & Go’s account, but as a general credit to the estate on Notch-ford, Brown & Co.’s books.”

The accounts of Notchford, Brown & Co. show fully all the cotton ever received from Q. D. Gibbs, administrator, when the same was sold, and for what amount. All their transactions with the administrator*, Q. D. Gibbs, are fully set out in detail. The only payments ever made are those credited in the several accounts of Notchford, Brown & Co., arising from the sales of cotton, which were applied to the general account, and not to said claim against the estate, in favor of Cuddy, Brown & Co. specially.

It is evident from the testimony of Shepherd Brown, that the account of Cuddy, Brown & Co. against said estate was never paid by Q. D. Gibbs, as administrator or otherwise.

The only proof in the record tending to show that he did pay it, is the receipt filed by him, appearing on- the account of the 24th of March, 1859.

It will be borne in mind this receipt is charged up against the estate of J. N. West on the 2ith day of March, 1859; rvhen the second probated account of Cuddy, Brown & Co. was sworn to by Shepherd Brown on the (7) seventh day of April, A. D. 1859, forteen days after the account seems to have been paid by Q. D. Gibbs.

On the same day, 24th March, 1859, Notchford, Brown & Co.’s account current rendered the administrator, Q. D. Gibbs showed that the estate of West was still owing Notch-ford, Brown & Co. $41,821.21 on this account; all the credits which appear as debits against himself, in the second annual account of Q. D. Gibbs, as administrator of said estate, being the sales of cotton raised on the plantation of West, amounting to the sum of $27,155.23.

This account of Notchford, Brown & Co., of the 24th of March, 1859, has the account due Cuddy, Brown & Go., by the estate of I. N. West, deceased, carried into it, and charged up against the estate.

How does the administrator, Q. D. Gibbs,- pay this debt of Cuddy, Brown & Co. against the estate of West? Whose cotton did he ship to pay it with ?

The receipt does not say. The administrator, Q. D. Gibbs, does not show whose cotton was shipped to pay this account. If it had been any other cotton than the cotton of the estate, raised by him and Mr. West, he would -have' shown, it. The only pretext the administrator, Q. D. Gibbs, could have had in charging the estate with this sum of $35,795.60, as having been paid by him to Cuddy, Brown & Co., was upon the hypothesis that there had been sufficient cotton shipped by him, as administrator, to the house of Rotchford, Brown & Co., to pay off the probated account. He must have known that if the account of sales of cotton had been applied to the “general” account of Rotchfoi’d, Brown & Go. against the estate of West, that the 'account due Cuddy, Brown & Co. was still unpaid. This account of Rotchford,-Bi'own & Co. showed large payments made upon the drafts of the administrator, and supplies furnished the plantation of West.

Suppose this account or debt of the estate with Cuddy, Brown & Go. had been paid as stated, it undoubtedly was paid by the funds of the estate of West,.and not by him individually. There is not a pártiele of proof in the cause .showing that Q. L>. Gibbs had any other cotton-to pay this debt with.

It was in proof that he had only the means arising from his profession, as an 'attorney-at-law, sufficient for the support of his family, and that he was not a cotton planter.

The accounts current, set out in the record and proven to be correct, show that the proceeds of the cotton 'shipped by Q. L>. Gibbs was credited and applied generally to the account of Rotchford, Brown & Co., with' the estate of West, created and kept up by the administrator, Q. I). Gibbs. Looking at the second annual account of Q. D. Gibbs, we perceive a number of charges against the estate, which will be shown .to have been paid by Rotchford, Brown & Co. • They overgo the amount of credits to the estate, or debits to himself. If he did not pay these amounts, the sales of the cotton being applied to them, the balance in his favor would have been nominal, or . he would have been in debt. . By the insertion of this large debt as a payment, he produces a heavy balance, which is carried to his third annual account; then a balance appears to be due him of $19,323^-5-, 1st March, 1860.

Attached to this account is this explanatory note: —

“ Explanatory Note.— I charge myself with all the cotton sold up to date of this settlement. I credit myself with so much of proceeds as is charged to Mrs. West, being amount of drafts drawn by her, interest and commissions on same. The estate owes me the balance per account. I owe the merchants bala/nce, except commissions on my own drafts, which, by previous order of the court, the estate is to pay. I am to settle with them as lam credited here.

“ In further explanation, I would state that so much of the balance of my account as may be necessary to pay the items of the account of the commission merchants to the extent of credits in this account paid by them, and eight per cent interest in the event of my death, should be paid them cmd charged to me.

“ If I complete the administration, the sales of cotton will liquidate their account, be charged to me, and thus discharge both accounts. Mrs. West is to pay what she has received, commissions and interest, to B., B. & Co.

“ Q. D. Gibbs.”

In the petition of Q. D. Gibbs, administrator, to the court, asking for an order to cultivate the plantation with the negroes of the estate, he uses this language: —

“ It will be necessary to procure the means through the merchants for the estate in New Orleans, to carry on the plantation, and settle claims against the estate.

“ That it would undoubtedly be to the interest of the estate to work the estate out of debt, and pay the customary charges of commission merchants. And your petitioners would state further, that, unless means to pay debts are obtained from the merchants, and the debts discharged, the estate will be subjected to great expense and costs, upon suits which will bo instituted by creditors.”

The merchants for the estate at that time were Cuddy, Brown & Co., who had, as appears from the record in the case before us, a deed in trust upon 3,880 acres of land and eighty slaves, executed by J. R. West and his wife on the 24th of April, 1855, to secure a large amount of money then due them and to become due. They are secured by this deed to the extent of the balance of the property therein mentioned.

It seems the “ outstanding debts ” have all been paid.

Were these payments made by the administrator, Q. D. Gibbs, or by the house of Rotchford, Brown & Co. ? If they were paid by the administrator, Q. D. Gibbs, how is it shown % We have no instance before us of any payments by the administrator, Q. D. Gibbs, other than the charges in his' annual accounts. He states in his petition, before referred to, that these outstanding liabilities had to be settled through advances to be made by “ the merchants of the estate.”

In his first annual account is a note showing how the charges in that account were paid. In his third annual settlement there is an “ explanatory note,” -which explains fully the plan of future adjustment of tifie balance due Rotchford, Brown & Co. for their advances to him. If all of these charges which appear as credits to the administrator, Q. D. Gibbs, in his annual accounts, were not really advances to him, for the benefit of the estate, from Rotchford, Brown & Co., why should he have made the explanation appearing' in- his first annual account? — and this, which appears on the third annual account: “I owe the merchants’ balance, except commissions on my own drafts, which, by ^previous order of the court, the estate is to pay. I am to settle with them as I am credited here.” Ho evidently means that the balance due Rotchford, Brown & Co. he owes, — the items that he has charged in these accounts against the estate, as credits for him. He is to pay them; for. the word “settle,” in the sense used by him, means to pay.

lie further shows how this balance was to be paid, — by the sales of cotton to be raised on the plantation. He did not contemplate paying any of it out of his own funds, but expected to pay it with the cotton to be raised by the estate of West, as the debts were created for the benefit of the estate. He certainly did not intend that any court should consider supplies such as pork, bagging, rope, &c., as payments by him, and for which he should be entitled to compensation out of the estate of West. If we have misunderstood the meaning of the administrator, Q. D. Gibbs, and have given a wrong interpretation of the first part of this “ explanatory note,” we think we cannot be mistaken as to his meaning in the subsequent portion of it. He certainly did not consider the items of credit which were paid by Botchford, Brown & Go. as legitimate charges or dawns to be paid him by the estate, — although appearing in his annual accounts as payments by him, — -and charges against the estate.

In his first annual account he shows a balance due him, as administrator, of $30,525.67, after crediting the estate with, the sum of $1,871.95, cash received of the assets of the estate, and the proceeds of 265 bales of cotton, raised by the administrator and administratrix in the year 1857, and sold by Botch-ford, Brown & Go., amounting to $13,527.74. This account was rendered on the 25.th of February, 1858. This large balance was before the account of Cuddy, Brown & Co., or receipt, passed into his possession. The administrator shows how this balance of $30,525.67 was made. He endorses the following on this account: “ I have charged and credited interest at eight per cent, from dates of payment to 25th of March, 1858. The payments are made by advances by Botchford, Brown & Go., and this is their interest. Commissions are not inserted in the accounts which are charged by the house.” He here declares that this large amount of payments was all paid out of the funds of Botchford, Brown & Co. Not one dollar of the $44,052.68 was paid by him out of his own funds.

This balance, apparently due the administrator, was carried to his second annual account, and so on to the end of his accounts.

The annual accounts show the'amount of cotton received by him and shipped to Botchford, Brown'& Co.; these accounts current show the applications of the proceeds of the cotton. This the administrator, Q. D. Gibbs, must have known.

These accounts current of Botchford, Brown & Co. were all in evidence before the court. The application of the proceeds of the cotton was fully shown by these accounts. Shepherd Brown’s testimony shows that there was no cotton shipped by the administrator, which does not appear on these accounts. The application of the proceeds was to the “general indebtedness.,” and not to the account of Cuddy, Brown & Co. specially.

It is manifest that the receipt of Cuddy, Brown' & Co. is without cpnsideration. The account of Cuddy, Brown & Co. is shown to be unpaid, only so far as is shown by the general application of all the cotton shipped to Botchford, Brown & Co., by the administrator, to the general indebtedness of the estate, created by "West, and his administrator, Q. D. Gibbs.

If we are correct in this view of the case, the receipt .or item of $35,795.60 should have been stricken from the final account of W. D. Gibbs, as stated by the court."

This assignment' of error we consider well taken, and the court erred in refusing to sustain the motion of jilaintifE in error. '

The proposition presented by the second assignment of error is resisted by the defendant in error, on the ground that the remedy of the plaintiff in error is at law, in the first place; that a suit should be instituted against the administrator, Q. D. Gibbs; and, .if a judgment proved fruitless, then they could subject' in equity the debt which the estate of West owes Gibbs to the payment of the debts which. Gibbs owes them.

This course, insisted- upon by the counsel for defendant in error, would lead to long and .useless litigation. The estate of Q. D. Gibbs is shown by the record to be insolvent, consequently the whole burthen of the expense would fall upon the plaintiff in error, even if such a course were necessary by law. The Probate Court unquestionably has jurisdiction of all the matters in controversy between the parties to .the cause before us, and can settle the points at issue, without either party being under the necessity of resorting to law or equity for assistance.

The cotton produced on the plantation of West'was raised through the forbearance and means of' Eotehford, Brown & Co. Without the supplies furnished, the administrator and administratrix could not have worked the plantation. Botch-ford, Brown & Co., by paying the debts drawn on them by the administrator, Q. D. Gibbs, in settlement of the outstanding liabilities of the estate, enabled the administrators to keep the property from being sacrificed; and, in fact,- Eotehford, Brown & Co. had an undisputed legal right to apply’the proceeds of the cotton so raised as they saw proper; and, as they'applied the proceeds of the sales of the same to the extinguishment of the-general indebtedness of the estate, created in the manner stated by the administrator, Q. D. Gibbs, and the pre-existing debt due Cuddy, Brown & Co. by J. E. West, this application of the proceeds of the cotton cannot be disturbed under the circumstances. The administrator, . Q.. D. Gibbs, could not have forced an application of the proceeds to the account of Cuddy, Brown & Co., if he had so desired, for the obvious reason, that this cotton was not assets of the estate, existing at the death of his intestate.

The item of $35,T95.40, “ account of Cuddy, Brown & Co.,” being stricken from the annual accounts of the administrator, Q. D. Gibbs, the proceeds of the cotton which he charges himself as having received will pay off and discharge the indebtedness he has charged the estate of West with, arising from the liquidation of the outstanding debts of the deceased, J. E. West, paid through his drafts on Eotehford, Brown & Co. . The items for supplies are void charges,-and must be rejected. . Wé'have carefully examined the accounts in proof of the administrator, Q. D. Gibbs, and W. D. Gibbs, as well- as the accounts of Eotehford, Brown & Co., and find the items of charges.against the estate (credits to the administrator) identical as to amount, and payees, or drawees (in some instances there arc variances as to dates, arising from the'date of the drafts and the times of payment), with the items of charges in the accounts of Botch-ford, Brown & Co. We have seen that, in the first annual account of the administrator, Q. D. Gibbs, the administrator declares that all the credits to him in that account were advances made by Botchford, Brown <& Oo. In his second annual account he says nothing relative to the credits. In this account the large items of the alleged payment to Cuddy, Brown & Co. appears.- With this account, and the other items, he shows that items of debits amounted to $91,067.69. Credits off, for cost received of assets of the estate, and cotton sold by Botchford, Brown & Co., all amounting to $44,535.67, was taken off, leaving a balance due administrator, Q. D. G., of $46,531.72.

This large balance was carried to his third annual account, which, with the items of credit in that account, sums up the whole amount to $73,890.84, and the debits off of $24,556.10, cash received, and for sales of cotton, leave a balance due administrator of $49,323.66.

On this third annual account, it will be recollected, his “ explanatory note ” appears.

These notes have reference,undoubtedly,to all the “credits” he has claimed from the beginning of his administration of the estate up to the settlement of his third annual account. If our view of their meaning and application be correct, it follows that he had not paid anything out of his personal funds, for the estate, up to the time of settlement of his third annual account. It is manifest from the explanations made by the administrator, that he intended no wrong upon the estate of J. B. West, by crediting himself with the advances of Botch-ford, Brown & Oo.

This seeming injustice all originated by the manner he kept his accounts, — by not charging himself with any advance of Botchford, Brown & Co., and crediting himself with the same amount paid to a creditor of the estate. If this had been done, he would have shown the disposition of every dollar received as advances from Botchford, Brown & Oo.; his receipts and payments would have always balanced.

Then his account, after charging himself with the cotton sold by Rotchford, Brown & Co., and credited to him by them, would have shown the balance due Rotchford, Brown <fe Co. on account of their advances, less their commissions and interest on these advances.

All that would be left to him to show was the disposition of the money he received from the assets of the estate, which he has charged himself with. If he paid the money out he received from the assets of the estate, the account would have been balanced. The administrator, Q. D. Gibbs, having failed, as we have shown, to pay out of his personal funds anything for three years of his administration of the estate, it is hardly presumable that in the last year of his administration he would pay any money out of his funds, when it is shown by the proof in the cause that he received a large advance from the State of Mississippi, upon cotton of the estate, which he has failed to account for.

The court, in the instructions to the commissioner, Jenkins, ordered that all the items charged as debits to the estate, for advances made by Rotchford, Brown & Co. in the nature of plantation supplies, should be stricken out from the final account. The court should have gone further, and ordered him to bring over all such items appearing in the four annual accounts of Q. I). Gibbs. "We do not see how these charges for supplies are more objectionable than the charges against the estate for money advances by Rotchford, Brown & Co. Every item of debit, growing out of advances from Rotchford, Brown & Co., the court should have ordered the commissioner to disallow. The court having failed to do this, the commissioner was bound to adopt the last balance shown by the administrator, Q. D. Gibbs, as true; and upon • that balance, and the illegal vouchers charged to the estate, being the advances of Rotchford, Brown & Co., he stated the final account upon which the final decree in question has rendered.

Consequently the decree in question is without substance, and a nullity, the commissioner having treated quasi j?ayments as real, in the construction of the account upon which the decree was based.

IJnder this view of the decree, we consider it unnecessary to give any opinion upon the question of set-off raised 5-n the second assignment of error.

Let the decree be reversed, and cause remanded for further proceedings in accordance with this opinion.