The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1866-12-19

and too long settled, that a pubic olhceI
whose character as such is stated III 'ho
| body of the certificate, or other INSTRUMENT
executed by him, in his official capacity,
need not do more than append his name, "
require reasoning or citation of authority oh
| that subject.
But it is said that he had been discharged
| from his trust before the execution OF bneso
| instruments, and could not, therefore,
| further act in his character of administrators
and that the bond is for this reason volo.
1t appears in the record, that by an ar
rangement between the husbands OF the us
tributes of the estate of Lawson +. Hen
derson, deceased, and the administrator
Love, the Probate Court discharged MN
from further accountability to that Court
| This was done without notice to the dlsIrIo-
utees The record shows no citation ever
issued but it recites that, lit appearing TO
the Court, that A. b. Treadwell and his
wife Margaret O. Treadwell, and Joseph ID.
| POstell and his wife Ann f. Z. Postell,
having been duly notified, &c, and that
NJ @ Treadwell and Ann E. c. Postell are
| the only heirs at law and distributes OF the
| estate of Lawson F. Henderson, deceased,
and their aUdirer Of citdtiOn hdcing been filed en-
d0rsed on said account, and their consent to ats
addition and dllOlUGnce" &c This waiver OF
| citation and consent, as appears by the
record, is signed by Posten and Treadwell
identity the evidence upon which Is based
| the recital in the record that the distributes
had been ''duly notified as there is no CT
tatiOn returned executed appearing IN the
record.
The question then arises, whether this was
a waiver of notice by these distributes, or
whether their husbands in the absence of
any evidence of authority, could waive for
| them the notice required by the statute,
upon the application of the administrator to
surrender his trust. Code, p. 439, art 81.
Upon this point we think it clear, that the
husband has no such right, under our law
He is not the general agent of the wife, in
relation to her separate estate. Atwood VS.
Meredith ct al 37th Miss, $685. GAL. And to
allow the husband, thus to bind the wife,
and conclude her by the judgments of the
| Probate or other courts, would defeat the
whole policy of the law, in reference to the
separate property of married women.
This was therefore Judgment or decree
of the Probate court, without the notice
required by the statute above cited, and
this court has often held, in reference to
| this, and all other courts, upon general
| principles, that their judgments are void as
against all parties interested therein, who
| for want of notice, have been excluded from
their day in court.
In the case of Neal VS.. Wellons, 18th S. q
NJ, $40, it was held that a final settlement
|
giving the notice required by the statute, is
void. highlands ct al VS.. Burge ct al, 14th
| S. & NJ, 20l, is to the same point. In the
| subsequent case of WinbOrn VS.. King ct al,
| this court says "a final settlement, to be
conclusive upon the parties interested, in
! the estate, and to hare the effect Of dis
| charging an administrator, can only be made
upon notice such as the statute requires,
! and the record must show the notice. But
| the proceeding is not void for all purposes
J 1t has such force and effect as the law gives
to erparte settlements or as they are usually
called, annual settlements" They are valid
J to this extent, because the law requirs no
notice in the case of annual returns or settle
ments, made by an Administrator all par
! ties in interest, having the right to be heard
in relation to them, after notice, when final
settlement is proposed to be made.
The account filed as final account, is then
! to be regarded as an annual account of the
/ Administrator, Love, filed at the November
; term, 1860, and it follows from Art. 81,
Code, p. 439, that the Administrator, Love,
was not discharged by the decree of Janua-
i Ty, 1861 The article provides that ''every
| Executor or Administrator, who may be re-
moved or surrender his trust, shall continue
to be answerable to the jurisdiction of the
court, until final settlement and satisfaction
, shall be made, and until that time shall be
liable on his bond.
to execute the writ of error bond, and apply
for the writ of error in this case
1t is next insisted that the teri tdcidS, was
rghtfully issued against the goods and
chattels, lands and teRements, of Lawson +.
Henderson, deceased, in the possession OF the
distributes.
The Judgment Oh which this execution is
ordered by the court to be issued, was Origi-
nally in favor of Mrs. Herndon, Guardian,
&c, VS. Jefferson Love Administrator oft
estate of Lawson T. Henderson, deceased.
The 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
decedent, in the hands and possession of the
heirs at law, under judgment obtained
against the Administrator after the death of !
the decedent.
The order was void-if it could have been
made at all-fOr the want of notice In the
case of n. 0. and J. r. r. Co. vs. Rollins, Adj |
ministrator, Both Miss. r., p. 364, it is said /:
"As a general rule, no execution can ever |
issue in favor of or against person who is
not a party to the original Judgment or
made so by some proceeding subsequent |
thereto. Bacon Abr. c., a, ID Tucker, Conn, |
p 340." Nor can any person be made a |
defendant to the execution, by such subse- |
quent proceeding, who is not chargeable |
WITH the ueDUOE demand. DdCon AuI Tx. |
F. G. & I'd Lord Raymond, 760. In such |
case scire facias is necessary. Smith VS.. |
Winston, I'd Howard, Col. Davis VS.. Helm,
Sd s. & M, II.
But in this case no execution could have |
been properly issued even upon notice by
Scire tacias, against the real estate of the de-
cedent in the possession of his heirs at law.
No Judgment was obtained against the an
cestOr in his lifetime and consequently no
lien existed.
The Judgment against the Administrator of
the decedent, could only be operative as a
lien upon the property in the hands of the
Administrator, to be administered
The real estate of the ancestor does not
vest in the Administrator, nor is it primarily
liable at all, to the payment of debts. The
Administrator as such has No interest in or
power over the real estate of the decedent
But it vests Immediately on the death of the
ancestor in his heirs at law.
Neither Art 81, p. 43l of the code, nor the
case of Powell VS.. Burrus Both Miss R., d.
COS, have the least application to this case
as here presented.
Nor have the cases of Burrus VS. Lewis, ]
Howard p. 2O7 and Van HOuton vs.. RILEY
9th S. 81 NJ. p. 440. These were both cases