The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1866-08-29
Reported Expressly for .he clarion

Reported Expressly for the Clarion
Lucinda Munday, Ex. &c, ct al
S.75o vs..
William CaIvit and wife
appeal from the Probate Court Of Franklin
County.
HON w. L. HARRIS, ASSOCIATE JUDGE,
DELIVERED THE OPINION OF THE
COURT.
The defendants in error filed their petition
in the Probate Court against the appellants
and others, legatees and distributes OF the
estate of Littleton Munday, deceased, pray
ing distribution and payment to petitioners
OF the several sums of money speclned III
the petition as due to petitioners
There was answer filed for w H. Baldwin,
one of the Executors, which was rejected by
the court because il was not sworn to-
There was also a plea filed by the EXecutriX
and Executors which was adjudged INSULT
cient and the said ExecutriX and Executors
were required to answer further. The same
Judgment pronouncing the answer INSULT
cient, recites that defendants having failed
tie answer said petition, upon motion, de
cree pro cOnttSSO against the EXecutrlX and
Executors was rendered; and thereupon
without further proceedings or proof and
without an account, a final decree was rem
dered against the said Geo. w. Sellers, Lu-
cinda Munday, and William ii. Baldwin, for
the sum of $lI 100 2l-00O.
This appeal is prosecuted to revise this
Judgment The lst, ID, Sd and 4th assign
ments of error relate to the action of the
court upon the sutficiency of the pleading
mentioned, the answer and the plea appear
ing in the record.
In the case of Crowder, ct al VS.. Shackle-
ford, ct al, 35th Miss X. p. 321, 800, which
was proceeding for distribution under the
statute, the court has said, that the statute
does not contemplate or require the pro-
/ ceeding by which the administrators ac-
cOuntability is to he ascertained, to be con-
Quoted according to the strict rules of plead
! ing. In case of controversy as to the amount
| for which the administrator should account,
| it would be the dnty of the court to require
an account, upon the same principles upon
| which final account is taken; the object III
| both cases being to ascertain the true amount
with which the administrators chargeable,
and no formality of pleading is necessary III
taking such an account"
And in French W. Davis, }-th Miss X +.
1871 it is held that, petitions for distribution
of estates are informal, and not regulated by
technical rules; and it is competent for
either party to introduce such evidence i'll
proceedings of this character may be ne
cessary to show what judgment shall be rem
dered, without regular and formal pleadings:
The 5th assignment of error is that tie
court erred in rendering final Judgment
against defendants below without euniring
a refunding bond icitJ security, and without
naming or specifying the security to be
given.
In the case before rs, Il refunding bond is
required by the decree, not specifying that
security should be given, or the name of
any securities.
In the case of French VS.. Davis, already
cited, it is held that decree Of this charac-
ter, is not erroneous, for not requiring a
refunding bond The effect of such a de
cree, is to order distribution according to
law, and if made before final settlement, it
cannot be enforced until IA refunding bond is
executed.
The 9th, 9TH, Sth and 9th assignments of
error, relate to the insut1iciency of the ser
vice of process. The Statute requires that
THE distribution OF personal estate, shall be
ordered and made in the same manner and
subject to the same regulations as real estate
descended" Code, p. Asa, art. llS. Art.
III, on same page, in relation to real
estate"-requires that the devisees or heirs
of the guardians OF such as are under age,
residing ia this State, shall be first sum-
mOned, before any decree and distribution is
made; - and art -, p. 46I, makes provisions
for cases of minors, who have no guardian,
or when the guardian is personally inter
ested.
Under these provisions, no valid decree
can be made for distribution unless these
parties in interest, are properly summoned.
In the case before us, with the exceptions
OF the EAeCuLrIA anes---np- -.g-VV nU appear
ed in Court, but few, if any, of the parties
made Defendants, (and four of whom are
minOTs,) were duly summoned, as appears
by the returns of the sheriff, on the different
citations issued The decree was, therefore
void on this ground.
The 10th assignment relates to the decree
This was certainly erroneous. 1t was made
without an account, and without proof of
any sort, SO far as the record shows, ascer-
tanning the estate in the hand of the Execu-
tTix and Executors, to be distributed
In the case of Crowder VS.. Shackleford,
35th Miss, p. 354, this subject is fully
discussed, and the rules to be observed
under this Statute, in proceedings for dis
tribution, are clearly defined.
An account should have been taken, and |
the amount and character, and condition of
the estate in their hands, and the distribu- |
tive share of each of the parties interested
aScertalned; and If, upon full Investigation, |
with all the parties before it, the Court |
should be of opinion, that the same would |
be just and proper, and for the best interests |
of all concerned, then it is made the duty of !
the Court Ito grant rule upon the EXecu- |
tor or Administrator, to make distributions |
according to law. In the case OfCrOwder VS. |
Shack!etord ii is said that their terms grant
rule to make distribution" imply that the |
funds subject to distribution, as well as the |
portions of the persons entitled thereto have |
been previously ascertained and fixed
1t was therefore error to grant this decree /
without such previous accounts and ascer- |
tainment of the amount character and !
condition Ofthe estate, as well as the por-
tiOns of the persons entitled.
1t VIII be unnecessary to notice the last |
assignment, relating to the plea, which was !
held insufficient Because this plea relates
to the negro children, the increase of the |
woman specifically devised "rith their in
crease" As this property was not affected |
by the decree, so far as we are enabled to see |
from the record, the action of the court in
reference TO this plea did not prejudice APP
pellants.
Let the decree be reversed and the cause
Temanded for further proceedings, according
TO this opinion.
-