The weekly clarion., 1866-12-20
iatIon returned executed appearing in the

waiver Oi notice by these dibtfiDutccai Ol
whether their husbands In the absence o.
any evidence Of authority, could waive FOL
them the notice required By the statute
npon the application Ofthe administrator u
surrender bis trust Gods. p. $50, art. ca.
Upon this point we think IL clear, that the
husband has no such night, under onr law
lie ~ not the general agent Of the wife, In
relation 20 her separate estate. Atwood Va
Meredith et al 37tb Miss, G35, 6il And q
allow the husband, thus 10 bind the wife
and conclude her by tho Judgments Of tbs
Probate, or other courts, would defeat the
whole policy Of the law, IN reference 10 the
separate property Of married women.
This was therefore judgment or decree
Of tho Probate court, without the notice
required by the statute above cited, and
this court las often held, IN reference to
this, and all other courts, upon general
principles, that their Judgments are void ~
against all parties Interested therein who
for want Of notice, have been excluded from
their day in court
In the case Of Neal ys. Wellons, I2th s. a.
NJ, Gi9, II was held that final settlement
and discharge Of an Administrator, without
giving the notice required by the statute, II
void. Neylands 81 al w. BuTge ot al, l4tb
\. q NJ, 20l. is 10 the same point In the
subsequent case Of WinbOrn VA. King ct al
this court says "A final settlement, 10 be
conclusive upon thc parties interested, ia
the estate, and 10 hare the effect of die
charging an ddmiHishafor, can only be made
upon notice such as the statntO requires
aud the record must show the notice. But
the proceeding IL not void for all purposes.
II has such force and effect as the law gives
10 oIpdrto settlements, or A. they are usually
called, annual settlements" They are valid
10 this extent, because the law requirs no
notice in the case Of annual returns or settle
monts, made by an Administrator all par
ties IN interest, having the right TO be heard
IN relation 90 them, after notice, when final
settlement Is proposed 10 be made.
The account filed as final account, In then
10 b1 regarded az an annual account of the
Administrator, Love, filed at the November
term, 1860, and 10 follows from Art. G7,
Code, p. d30, that the Administrators, Love,
was not discharged by the decree Of Janua-
ry, 1861, The article provides that "every
Executor or Administrator, who may be re-
moved or surreEder his trust, shall continue
90 be answerabe TO the jurisdiction Of the
court, until final settlement and satisfaction
shall DC made, and until that time shall be
liable on his bond.
II follows from this, that he had the right
to execute the writ of error bond, and apply
for the writ of error in this case.
II Is next insisted that the 6ei Cdoids was
rightinlly issued against the goods and
chattels, ldnds and teRcmenfs, of Lawson f.
Henderson, deceased, IN the possession Of the
distributes
The judgment ON which this execution is
ordered by the court to be issued was origi-
nally in favor of Mrs IerndoD, Guardian,
&c, VS., jefferson Love, Administrators 0fthe
estate of Lawson r. Henderson, deceased
Tho order was made without any proceed
Ing, or notice whatever and directs the
execution to issue against persons who were
not parties TO the original Judgment and
further directs the sale of the lands of the
docedent, in the hands and possession Of the
heirs at law, under n Judgment obtained
against the Administrator after the death of
the decodent
Tho order was y0id-if IL could have been
made at all--ior the want of notice. In the
case of N o. and j. X. II. Co, ys. Rollins, Ad-
seth Miss r., p. 3Si, it is said
''As n general rule no execution can ever
issue in favor of or against person who "
not "a party TO the original Judgment, or
made 10 by some proceeding subsequent
thereto, Bacon Abr, C., 4, Cd Tucker, Conn,
,, $40" "N0r can any person be made
defendant to the execution, by such subse-
lucnt proceeding, who is not chargeable
with the debtor demand, Bacon Abr, EX.
A. G. Il 2d Lord Raymond, 76s. In such
'nsc u soiro .tdcids is necessary. Smith VS.
Winston, % Howard, col. Davis VS. Helm,
ii s. g. NJ, II.
But in this case no execution could have
,oen properly issued even upon notice by
oirc .fdcids, against the real estate Of the de-
odcnt in the possession of his hcirs at law.
20 Judgment was obtained against the an
Ia, q, L.
len existed.
The Judgment against The administrator of
he decedcnt, could only he operative ms
len upon the property in the hands Of the
administrator, TO he administered.
The real estate of the ancestor does not
est in the Administrator, nor is il primarily
liable at nll to the payment of debts The
administrator rs such has NJ interest in. or
ower over the real estate of the decedent.
lut IL vests Immediately on the death Of the
ncestor In his heirs at law.
Neither Art. 81, p. i3l of the code, nor the |
aso of Powell vs., Burrus, 3lth Miss, r., p. |
%, have the least application to this case
$ here presented.
Nor have tho cases of Burris vs Lewis, |
Toward p 207, and Van Houton va. Riley |
th :. 4 NJ. y. iiO These were both cases |
here judgments had been obtained against |
he Administration and levied on personal |
ropcrty belonging TO the estate of fdeccdents. |
Whether we regard the execution as SUI
erseded or rs issued against third parties |
'ithout notice, or against the lands Of dece-
ent in the hands of the heirs in either view |
{ this case, the motion TO quash the execu- |
on should have been sustained. !
Let the Judgment of the court below upon |
he motion of Plaintiffs in error to quash |
ie execution he reversed and an order |
nashing the execution entereh here.