Foley v. McDonald

Simball, J. :

This is an appeal from the decree of the probate court, licensing the administrators of the estate of John McDonald, deceased, to sell the lands of their intestate, on the allegation of an insolvency of the personal estate.

Two questions are made in this court: 1st. As to insufficient notice of the suit to some of the heirs. 2d. That the administrators did not make out a case warranting a sale of the real estate. The petition states that the intestate left surviving him seven children, besides the petitioners W. B. and George McDonald, the administrators, three of whom, to wit, Margaret McCormick, Elizabeth Beec[ and Sarah Barber, are non-residents. The amended record shows a publication addressed “to the non-resident heirs of John McDonald, deceased,” to the effect that the administrators had filed their petition to declare the estate insolvent, and for an order to sell the real estate, which was issued the 2d October, 1868, and published for five consecutive weeks in the Meridian Gazette. Art. 22 of probate court law, Code (1857), p. 429, requires that when it is necessary to notify a non-resident or absent party who has an interest in the proceeding, and he is a necessary party, “or when the parties in interest are unknown,” the court shall make an order appointing a day, in some succeeding term, for appearance, which order shall be published in a newspaper, in the opinion of the court, best calculated to give the notice, etc.

The notice to tbe non-residents comes siiort of meeting the demands of the law. 1st. The statute implies a notice to both “known” and “ unknown parties if the former, the publication should be addressed to them personally; 2d. The law is, the court by “order” shall appoint a day for appearance, and' shall select the paper in which publication shall be made. In'this case'the non-residents were “ known,” yet the publication was to the “heirs ” of the intestate. Nor was there an “ order” of the court designating a day for appearance, nor a newspaper named, in which the order should be published. It follows then that the non-resident heirs had not sufficient notice of the suit. Moreover, the injunctions of the first section of the act of 15th January, 1862, was disregarded, which prescribes additional means to the other statutes, as to imparting notice to non-residents. The citation served on David McDonald was for his appearance at the February term, 1867. It was issued 6th January, 1867, received by the sheriff the 28th January, 1868, and personally executed. The service was eleven months after the expiration of the term at which he was intended to be notified to appear. Both the publication and this service were insufficient.

The second question is, was a case made out for the sale of the real estate ?

The whole amount of debts registered against the estate amounted, exclusive of interest, to $6,290 55. The administrators distributed slaves, estimated in the appraisement at $17,784. The cash receipts, as shown by their several annual accounts, amounted to $11,547 06, so that they were in the possession of ample assets with which to pay off the creditors, and there could be no reason to so apply the lands if there had been a proper and faithful administration. The condition of the refunding bond covers debts “thereafter appearing,” implying that debts have been paid, or that enough ought to be retained for sale, or has been, to meet the debts.. It is an utter perversion of the system of administering the estates of decedents, as prescribed in tile statutes, to transfer the personal effects and moneys by distribution to the heirs, and then, several years afterward, resort to the lands, on the allegation that there is no personal estate. It was very early held that distribution was void as against creditors; that one who had judgment against the administrator could take, in execution, property in possession of the distributee. That distribution has been made, does not change the order of liability of the real estate. Means to pay unsatisfied debts must be raised through the refunding bonds, and until remedy has been exhausted on them, and, in some circumstances, on the bond of the administrator for maladministration, there is no right to resort to the lands. The law imposes upon the administrator, so soon as the condition of the estate shows a necessity for it, the duty of raising money by sale of personal property to liquidate the debts. It is a violation of his trust to distribute money or property with a knowledge that there are outstanding debts. 44 Miss. 330.

It was offered to be proved, as excuse for distributing the money, that it had been collected in Confederate' notes, which were depreciated, and which the creditors declined to receive. The accounts settled in the probate court do not show of what funds the most of the money consisted. It is not competent, after these settlements have been made, to show, by parol evidence, that the “ dollars and cents” therein stated and accounted for, meant depreciated bank notes, or Confederate treasury notes. Bailey v. Dilworth, 10 Smedes & Marsh. 404; 33 Miss. 553; Coffin v. Bramlett, Guardian, 42 ib. 201; 41 ib. 411.

In the fourth annual settlement there is a memorandum of $4,801 70 (proceeds of sale of personal effects), “sale for Confederate money.” This is the only mention in these settlements of that sort of money. If that were entirely rej ected from the computation there would still be a large surplus of personal assets after satisfying creditors. The facts shown do not warrant a sale of the lands.

Decree reversed and cause remanded.