The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-05-02

have been settled by her with the appel
lie on the final settlement. which was to
have been made between them amicably
and individually, and 70 have been merely
sdopted by the Probate Court formally"
He further alleges that after the sxScu-
ton OF the mortgage he gave his note for
SOU, to Margaret A. Lucy as q payment
upon the mortgage debt. He states that
matters of account, and especially the
judgment against her fathers estate,
which was a lien on the property received
by her from the estate, were claims
against the estate at the time of her
death and therefore denies the right of
the husband in his own right, to maintain
this bill, there being no administration
upon the estate. He further states that
the appellant, in addition to this bill for
iorcclosing the mortgage, has also brought
his action at law to recover the mortgage
debt and the sum claimed upon the note
for $3.50, and has filed his petition in the
Probate Court against the appellee for a
settlement of his account as guardian,
and the prayer is, that the suit at law and
the proceeding in the Probate Court be
enioined until the determination of this
suit-that all those matters be consolida-
ted with the suit, and that an account be
taken in Chancery Of all the matters of
account embraced in the original and cross
bill in this suit, and decree rendered &C
cordingly in this suit.
To this cross-bill, the appellant filed a
demurrer. which was oyerruled and this
appeal thereupon taken.
The principal grounds of equity set up
in the cross-bill. are the alleged claims OF
the appellee against the appellants wife,
to whose rights he has succeeded, and
which are alleged to be unavailable to the
appellee, in the ordinary course of legal
proceedings, because he cannot sue for
them at law, there being no administers
ton Of his wife's estate.
We will consider the character of these
claims as shown in the cross-bill.
The first is the claim for what may be
due himupon a settlement Of his guardian
account. b is plain that there is nothing
in this, emitting the appellee to the inter
position Of a Court of Equity. The mat
ter Of that account was already depend
ing, by the petition of the appellant call
ing him TO account, in the Probate Court,
the tribunal to which the matter appro-
priately belongs, and whose jurisdiction
should not be interfered with for aught
that is shown in the cross-bill. All that
the appellee had to do to get the benefit
Of anything which might be due him on
his guardianship account, was to proceed
promptly to settle his account in that
Court, which, if he had done his duty,
might have been speedily done. and then
he could have had the benefit Of that SET
Element as a defence to the bill in this
case. if the mortgage was executed for
the purpose and under the circumstances
stated in the cross-bill. His failure to
make any settlement of that account in
the proper Court for so great length of
time, and his. continued wish to do so by
transferring it to another Court, and in
yolving it in a complicated litigation. do
not commend this claim very favorably to
consideration in Equity. And the transfer
Of the matter TO d court Of Chancery.
might be very unjust to the appellant, in
| the event that. upon taking the account,
there should be found to be due from the
appellee a much larger sum than that Sc.
cured by the mortgage. For he would be
=. almost necessarily delayed in the collec.
l ton of that amount by the complicated
/ litigation involved in this cross-bill, much
/ beyond the time in which the matter Of
! account might be brought to a close in
the Probate Court. There appears. there
fore, to be no just ground for the interpo
sition of Chancery in this clam.
The second ground Of Indebtedness i,
the liability Of the wife Of the appellant
for her proportion Of the Judgment agains
her fathers estate. But there are two
very good reasons. why this claim should
| not prevent the enforcement of the mort
gage-lst. the appellee Is Unidentified by
the refunding bond executed by Marga
ret A. Lucy and sureties against tina
claim upon the estate; and he may hav,
recourse upon that bond in case he j
compelled to pay this judgment and it i
a proper claim against the estate-3d. tn,
liability upon that bond is not fixed.
could only arise upon the appellee max
ing a final settlement Of the estate, an,
it appearing thereby that the assets hat
been fully and legally administered, am
that in consequence of the distribution
after proper administration of the who'll
estate, there were not assets in the execu
tors hands wherewith TO pay the claim
lhul IL appears AlldA AAlt liCAlft lAcS lAldAl
no account of final settlement of the e,
tate; and whether there is any liabilit
upon the refunding bond depends entire
Is upon that settlement. To give the az
pellee the benefit of this claim against tn
wife of the appellant would, therefore, D
either to allow it without the proper SCI
Element in the Probate Court, or to tram
fer the matter Of the settlement of tn
executors account from the Court whic
has proper jurisdiction Of it to anothC
Court, and to involve it in a protracte
litigation.
The third claim attempted to be set u
3 is that founded on the compensation
/ the appellee for his services as execute
2 of the estate Just mentioned. 1t is allege
9 that the appellants wife became liable
? pay the appellee 500 on this account, an
the ground of the liability, a. stated
the cross-bill is, that the distributes ha
{ promised to pay him fair compensate
3 for his services, and the other distributee
not including the appellants wife, esc
= had allowed him that sum. According
! this statement of the claim, she was M
bound to allow him any particular SUI
j for his services and although, if the ma
J ter had been agreed upon and final Y Sc
tied between the parties. such a settl
; ment might have been held cOndusi,
j. and dispensing with any settlement wit
$ the Probate Court; yet where no SUCH
e nal settlement has been made, such a
p agreement as stated must be taken
I bind the distributee to allow the exec
5 tor only such compensation as he may
G law be entitled to, to be fixed and allor
ed by the Court having control Of Il
g subject and whose proper duty it is 20 d
e termine the matter. A " fair compens
, ton" to an executor must be taken to
e what the law allows.
Now it appears that there was no settl
ment made between the parties, and IN
the appellee has failed to settle his .
n counts in the Probate Court. He cam
4 claim an allowance except upon such ;,
P. Element. and that he has failed to nah
u Ii would be contrary to all principle, al
u contrary to the established law upon I
= subject, to transfer the question of co
u missions to be allowed to an executor fro
y the Probate Court to another tribunal,
u timately connected as it is with the sett
ment Of the whole estate, and certain
+ the great delay of the executor in q
n case does not, for aught stated in {
cross-bill. make his case an exception
a. the established rule. 1t will be til
Is enough for him to claim the benefit
er his commissions upon the estate as a $
Is off to the mortgage debt, when he sh
p have settled his account with the prof.
- Court, and the amount due him sh
r have been fixed. For aught that appe
II here, he can do that without DELAY: q
e then the question may be properly ma
IL by him whether the amount adiudged
p him shall go IN discharge Of the mortgi
debt.
ne As to the note for $3.50 being in p
as payment of the debt embraced in
mortgage, there is no necessity for
ld cross-bill on that ground or for the iniu
6 ton to the suit at law. For it is matte
defence, and if established by proof
will be available to defeat recovery
the amount of that note in the actor
law.
- Another feature of the cross-bill
~ mains to be noticed. 1t is that part oil
, which denies the right of the appellan
- sue in virtue Of his right of surviv
% ns husband Of his wife, there being de
~ against her estate for which it is bounC
IN This objection is founded upon the i
"a that the claims of the appellee above {
81 sc sidered are valid debts, now subsist
~, against her, but which cannot be enfor
w hooa,,ua The hpgborA te not g,,bso,f &c