Opinion
No. 35667.
November 13, 1944. Suggestion of Error Overruled January 22, 1945.
1. APPEAL AND ERROR.
On appeal from judgment sustaining demurrers to petition, Supreme Court would not consider answers filed to the petition.
2. EQUITY.
A special prayer for particular relief which complainant asks is indispensable, unless case is such that obviously only one particular simple relief can be granted under the facts of the bill.
3. EQUITY.
Where petition in action against administratrix and purchasers of realty belonging to decedent's estate did not pray that sales be set aside or contain prayer for general relief, demurrer thereto was properly sustained as to purchasers.
4. EXECUTORS AND ADMINISTRATORS.
After establishment of will, appointment of executrix, and giving of bond, executrix was entitled to balance of proceeds of estate in hands of administratrix after estate had been fully administered and all costs and fees paid.
5. EXECUTORS AND ADMINISTRATORS.
Where final account of administratrix showed funds on hand after estate had been fully administered and all costs and fees paid, petition showing establishment of will, appointment of executrix and giving of bond, and praying that administratrix be required to deliver personal property of estate to executrix, stated a cause for relief in such respect sufficient to withstand general demurrer, though administratrix as widow had renounced will and claimed half of funds in her hands.
APPEAL from the chancery court of Warren county, HON. J.L. WILLIAMS, Chancellor.
George Chaney and Brunini Brunini, all of Vicksburg, for appellant.
The grant of the letters to administratrix was null and void. Mrs. Lyda Johnson, the appellant, filed her petition with the will for the latter's probation on October 13, 1938, and in the same matter the widow filed her petition on October 25, 1938, charging that she was advised and believed that said decedent left no legal last will and testament, and on the next day, October 26, 1938, on the ex parte petition, the clerk entered an order granting to the widow letters of administration. We submit that the clerk did not have any power whatever to pass on the legality of John W. Hilton's will. In fact, he entered the decree on the petition of the widow on her statement that she was advised and believed that the will was not a legal one. If that power had rested in the clerk, certainly that power would have been accompanied with a provision that the executrix and the beneficiaries in the will should first have reasonable notice. Even the chancellor in vacation or in term time would not have had the power to declare the will illegal without notice to the executrix and the beneficiary under the will. In other words, we submit, the clerk did not have jurisdiction to do what he did do, and everything that has been done by the widow as administratrix is null and void.
Even if the will had not been filed, and administration had issued to widow, the probation of the will revoked her authority.
Hilton v. Johnson et al., 194 Miss. 671, 12 So.2d 524; Ricks v. Johnson, 134 Miss. 676, 692, 99 So. 142; Austin v. Patrick, 179 Miss. 718, 726, 176 So. 714; Code of 1930, Sec. 1641; 33 C.J.S. 903, Sec. 22, p. 908, Sec. 27.
The appellee MacIntosh is not an innocent purchaser for value, nor are the widow, Mrs. Nora V. Hilton, Clvde McGehee and David Gill innocent purchasers for value. The records of the estate were notice to any purchaser, and if MacIntosh purchased in 1942 the homestead, he would have found that on May 16, 1939, the Hilton will was admitted to probate and he would also have found that later on it was further contested by the widow on appeal to the Supreme Court and that the case was then pending in the Supreme Court. He would have known, too, that if the Supreme Court had sustained the will the administratrix had no right to sell the property. Section 1641 of the Code of 1930 provides that if a will shall be found and probated and letters testamentary be granted thereon, the same shall be a revocation of the administration, but acts lawfully done by the administrator without actual notice of said revocation shall be valid and binding. But the administratrix in this case knew of the existence of the will before she was ever appointed as the administratrix. It is inescapable to any one that appellee MacIntosh cannot claim that he was an innocent purchaser.
In conclusion, we are asking this honorable Court to order or mandamus the court below and the administratrix to cease acting as administratrix and to pay over and deliver all of the assets of the estate that came into her hands so that the executrix, in whom her brother had confidence as to her good business judgment, can use her judgment as to what is best to be done, all in accordance with the prayer of the petition. May we also beg of this honorable Court that it will read the petition and see what has been charged and what admitted by the administratrix. The real estate was sold at less than its market value and bought in indirectly by the administratrix. All of these questions will be brought out when the case comes back for hearing on the answer. Appellant therefore submits that this cause should be reversed and the order made in accordance with the prayer of the petition of the executrix.
R.M. Kelly, of Vicksburg, for appellee.
Where conditions, after the death of testator, have so changed that, had he anticipated them, he unquestionably would have made a different choice, the court in its discretion could refuse to appoint the one named in the testator's will.
Ricks v. Johnson, 134 Miss. 676, 99 So. 142.
Our court has repeatedly held from early to modern times that the proceedings for the widow's allowance are ex parte and that no notice therefore need be given the administrator or executor, the heirs or legatees.
Morgan v. Morgan, 36 Miss. 348; Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371; Prentiss v. Turner, 170 Miss. 496, 155 So. 214.
Parties summoned to answer a petition to sell land should then present their defense, and will not be permitted to remain silent, and, after a sale made and reported, come in and show cause against the decree for a sale. They should speak when called on to do so or afterward remain silent as to all matters then existing, and within their knowledge.
Norris v. Callahan, 59 Miss. 140.
The prayer for relief in a bill or petition is certainly essential, and it must specify the particular relief which the complainant deems himself entitled to. In the instant case the prayer simply does not ask for any relief that can be granted, and even if the allegations in the petition were such as to afford some sort of relief, there is no general prayer contained in the petition. The action of the court in sustaining the demurrer was certainly justified by reason of the insufficiency and uncertainty of the prayer.
Griffith's Mississippi Chancery Practice, Sec. 185, p. 181.
Vollor Teller, of Vicksburg, for appellee, Thomas L. MacIntosh.
The prayer contained in the petition prays for no grantable relief against appellee MacIntosh, and the demurrer interposed to the petition most certainly should have been sustained.
Griffith's Mississippi Chancery Practice, Sec. 185, p. 181.
An original bill is usually the only remedy available to set aside a sale finally confirmed.
Griffith's Mississippi Chancery Practice, Sec. 660, p. 771.
Parties summoned to answer a petition to sell land should then present their defense, and will not be permitted to remain silent, and, after a sale made and reported, come in and show cause against the decree for a sale. They should speak when called on to do so or afterward remain silent as to all matters then existing, and within their knowledge.
Norris v. Callahan, 59 Miss. 140.
Confirmation is the judicial sanction of the court, and by confirmation the court makes it a sale of its own; and the purchaser is entitled to the full benefit of his contract, which is no longer executory but executed, and which will be enforced against him and for him.
Ladd v. Craig, 94 Miss. 659, 47 So. 777.
No tender was made in this case, and a demurrer was properly interposed and properly sustained.
Mitchell v. Harris, 43 Miss. 314; Griffith's Mississippi Chancery Practice, Sec. 525, pp. 567, 568; 35 C.J. 110.
The rule is too well established that a judgment of a court having jurisdiction of the parties and the subject matter is conclusive on the parties and their privies in collateral proceedings.
Kevey v. Johnson, 167 Miss. 775, 150 So. 532; Giglio v. Woollard, 126 Miss. 6, 15, 88 So. 401, 14 A.L.R. 616; Ames v. Williams, 72 Miss. 760, 17 So. 762; Fridley v. Farmers' Mechanics' Sav. Bank (Re Price), 136 Minn. 333, 162 N.W. 454, L.R.A. 1917E, 544; 21 Am. Jur. 749, Sec. 665; 24 C.J. 666.
The property purchased by MacIntosh at the administratrix's sale was sold at public auction on June 2, 1942, pursuant to order of the court, and after legal service or citation had been had on all parties concerned. After the purchase of the property by MacIntosh the sale was reported in the manner prescribed by law to the chancery court, resulting in the entry of an order confirming the sale. If we examine the record as it existed on June 2nd, and prior thereto, we find that Nora V. Hilton was the duly appointed and constituted administratrix of the estate of her deceased husband. Appellee MacIntosh certainly, under the facts and circumstances existing, had a right to rely on the chancery court of Warren County, Mississippi, to pass title to him at the public sale by Nora V. Hilton as administratrix. She was recognized by the court and the adverse parties as the duly and constituted administratrix of the estate of John W. Hilton, deceased. Then, too, after the sale by the administratrix, under the supervision, control and sanction of the court, it was reported by the administratrix and confirmed by decree of the court.
Argued orally by George Chaney, and John Brunini, for appellant, and by R.M. Kelly, and W.J. Vollor, Jr., for appellee.
John William Hilton departed this life in Warren County, Mississippi, September 20, 1938, leaving as his only heir at law his widow Mrs. Nora V. Hilton. Letters of administration issued to her on his estate October 26, 1938. It is claimed by appellant that there was then a will of decedent on file with the chancery clerk. There is confusion in the record as to just what were the facts in that regard, but in view of the conclusion we have reached on the issues now presented to us by this record, the question is not material.
Mrs. Hilton, as administratrix, gave notice to creditors and proceeded to administer on the estate, and, in March, 1939, was allowed, on her petition, the sum of $960 for her support and maintenance as such widow, which was later increased to $1320.
On April 5, 1939, Mrs. Lyda Johnson, appellant, filed a petition for probate of the above mentioned will, and prayed for the removal of Mrs. Hilton as administratrix. No action was taken on that petition.
On May 2, 1939, Mrs. Johnson filed another petition asking for the probate of the will and the issuance to her of letters testamentary.
May 16, 1939, a decree was entered admitting the will to probate and granting letters testamentary to Mrs. Johnson. The will devised and bequeathed all of testator's property to his four sisters, including Mrs. Johnson, and his three brothers, naming Mrs. Johnson as executrix therein. It was dated April 4, 1921, he then being unmarried.
May 17, 1939, Mrs. Johnson, executrix, presented a petition to require Mrs. Hilton, administratrix, to file an inventory and appraisement of the estate. The court so ordered, and the administratrix filed the inventory on June 19, 1939, reporting that the only property left by decedent was a watch of the value of forty dollars and certain real property.
On September 5, 1939, the widow filed a contest of the will. On April 10, 1940, a final decree was entered establishing the will, ordering the administratrix to deliver the property in her hands to Mrs. Johnson, executrix, upon execution by the executrix of a bond in the sum of one thousand dollars, and granting an appeal with supersedeas from the decree. The appeal was prosecuted. On March 29, 1943, the appeal was decided by the Supreme Court, and the will finally established.
During all of this time Mrs. Hilton continued to administer upon the estate under orders of the court, including the judicial sales of three parcels of land, being all of the real estate owned by the decedent, one parcel being the homestead, the right to which the widow waived, it being necessary to sell the real property to pay the debts of the estate. There were three separate sales and appellees, McGehee, Gill and MacIntosh were the respective purchasers.
On September 28, 1942, the administratrix filed a final account, showing the proceeds from the three sales of land, the probated claims and the fees of herself and her attorneys which she had paid, the balance in her hands being $1,220.20, she having received no money during the administration except from such land sales and except ten dollars with which she had charged herself as being the value of the watch.
On January 12, 1943, this account was approved by the court and the administratrix was ordered to pay the court costs, the balance of her fee and that of her solicitor.
On February 4, 1943, a further report was made by the solicitor for the administratrix, showing full payment of the court costs and fees, which left a balance in her hands of $690.24, which she offered to pay to "such persons as may be legally determined are entitled to receive same."
On May 3, 1943, Mrs. Johnson filed bond as executrix in the sum of one thousand dollars, in compliance with decree of the court dated April 10, 1940.
The petition now under consideration was filed May 25, 1943. It purports to be filed by the executrix alone and it is so signed by the solicitors, but in the body thereof it is stated that all of the beneficiaries under Hilton will join therein. The petition sets out all of the acts performed by the administratrix and asserts that such acts were illegal because her appointment was invalid, and in addition, as to the three land sales, that (a) some of the heirs of deceased beneficiaries under the will, were not made parties to such sales, (b) that the properties sold too cheaply, and (c) that McGehee and Gill were acting for Mrs. Hilton in their purchases. The petition prays for (1) citations, (2) discovery by the administratrix, (3) that the administratrix be restrained from further administering on the estate and (4) that she be required to deliver to the executrix the property remaining in her hands as administratrix.
Respondents to the petition, appellees here, filed a general demurrer to the petition on the grounds, first, that there is no equity on the face of the petition; second, that no relief is grantable under the petition as drawn, and, third, that petitioners are estopped to attack the validity of the sales, being parties to the proceedings authorizing them. The lower court sustained the demurrers and Mrs. Johnson, executrix, alone appeals.
All respondents also filed extensive answers, setting up various facts and legal contentions as defenses to the petition. But the matter being here on demurrer these answers will not be considered by us on this appeal.
It will be noted the petition does not pray that the sales of real property be set aside. On the contrary, it asks that the proceeds of such sales be paid petitioners. Aside from whether a sale of real property could be set aside in such proceeding, which we do not decide (see Griffith's Chancery Practice, page 771, Section 660), it was necessary that the petition pray for that relief. "The prayer for relief is essential, and it must specify the particular relief to which the complainant deems himself entitled, because both the court and the defendant are enabled thereby to more fully determine the character of the bill, it having been tersely said that the court and the defendant are entitled to know not only what facts the complainant relies on but also what he expects to make of the facts. The special prayer for the exact and particular relief which the complainant asks is indispensable therefore, unless the case be such that clearly and obviously only one particular simple relief can be granted under the facts of the bill." Griffith's Chancery Practice, page 181, Section 185. This case is not within the exception. There was no prayer for general relief. Therefore, the demurrer was rightfully sustained as to appellees Gill, McGehee and MacIntosh, and, as to them, the case is affirmed.
The petition prayed that the administratrix be required to deliver to the executrix the personal property in her hands. The final account of the administratrix, on file when the petition was filed, showed she had on hand $609.24 and the estate had been fully administered and all costs and fees paid. The will had been established and the executrix had given bond as required by the decree of the court. There was no reason why the administratrix should not have paid this money to the executrix. The executrix was entitled to whatever balance there might be. It is true the record shows that after the filing of the petition by Mrs. Johnson, executrix, that Mrs. Hilton, who had apparently married Mr. Gill, undertook to renounce the will as widow, claiming half of the balance of the money. Even though that act can be now considered, she yet, it is admitted, has money in her hands to be delivered to some one. The executrix is the person entitled to it. The petitioner states a cause for relief in that respect, which is sufficient to withstand a general demurrer, aside from any other issues or questions which may be involved.
Affirmed as to appellees McGehee, Gill and MacIntosh and reversed and remanded as to Mrs. Hilton, executrix.
Affirmed in part and reversed and remanded in part.