Cason v. Cason

1. Statutes : construction of. — In construing a statute, the word “ shall” will be interpreted in the sense of “ may,” if the spirit and intention of the act require it. 2. Jurisdiction : courts of special jurisdiction : rules in relation to. — With respect to courts of special jurisdiction, the rule is, that ail necessary jurisdictional facts must be shown by the record, in order to sustain the jurisdiction; but this rule applies only to questions of jurisdiction, as to the subject-matter, •and not to the person; for wherever the jurisdiction has once vested, as to the .subject-matter, the rules which govern its exercise, as to the person, with re- ' gpect to evidence, process, &c., are generally the same as those applicable to courts of general jurisdiction. :3. Judgment: presumption in favor of. — The judgment of every court, on a subject-matter within its jurisdiction, is presumed to be correct, and to be based .on sufficient evidence, in all cases where the evidence is not required by law to be made a part of record. 4. Executor and administrator : final settlement : affidavit of non-residence. —The affidavit of an executor or administrator, stating the non-residence of a distributee, provided for by the 13th section of the Act of 1846r(Hutch. Dig. 682,) is not essential to the validity of the order of the Probate .Court, awarding publication of citation against such non-resident; and is not required to be in writing, or to be recorded; such affidavit is only a species of evidence in pais, which that act authorizes for the consideration of the court, in determining the fact of non-residence; and the court may act upon any other satisfactory proof of non-residence, without requiring the affidavit of the administrator or executor. 5. Probate court : practice in relation to final settlement. — It is not essential that the order of the Probate Court, awarding publication of citation to non-resident distributees, at the instance of the administrator or executor applying for an allowance of his final account, should specify the names of such non-residents, provided, that the citation which is issued and published, is directed to them by their proper names. 6. Probate court : judgment of, presumed correct, and not impeachable by parol evidence. — In a proceeding instituted in the Probate Court, by a distributee against an executor or administrator, to set aside and annul a final settlement, made by the latter, it is incompetent to show, by parol proof, that the requisite evidence was not before the court to justify it in awarding publication of citation against the distributee, as a non-resident. The matter being within the jurisdiction of the Probate Court, its judgment is presumed to be correct, and founded on sufficient evidence, and cannot be attacked in a collateral proceeding. See 1 How. 173; lb. 450; 28 Miss. R. 409. 7. Executor and administrator: final settlement: how minors are bound by. —The statute, (Hutch. Dig. 682, ji 12,) requires, that when an executor or administrator applies for an allowance of his final account, -if any one of the distributees be a minor, and a non-resident, publication of citation, as to him, shall be directed to his guardian by name and character; and if he have no guardian, the court shall appoint a guardian ad litem, residing within the jurisdiction of this court, who shall be cited. A final settlement, therefore, will be void, as to a non-resident distributee, who is a minor, if the citation published be addressed to him by name, and not to his guardian; and if he have no guardian, it is essential that a guardian ad litem be appointed and cited. 8. Executor and administrator : interest due by: how calculated. — Where an administrator is by law chargeable with interest, and he has made disbursements on account of the estate, the interest should be calculated in the same mode as on contracts for the payment of money, where partial payments have been made, viz: the disbursements should be credited first on the interest due by the administrator at the time they were made, and the surplus, if any, to the principal. 9. Same : when liable for interest. — If an administrator unnecessarily loan the notes or bonds of his intestate, he will be liable for interest at the legal rate at the time the loan was made, notwithstanding the rate of interest was after-wards, and before final settlement, reduced. 10. Same. — If an administrator render no account of money received by him, as a part of the assets of the estate, and there be no necessity for his retaining it, he will be liable for interest on the amount so received and retained. 11. Same: when liable for debts not collected. — A loan by an administrator, without authority of law, of notes or bonds belonging to the estate, will render him liable for the amount thereof, although the makers or obligors become insolvent, unless he show, that by the use of the greatest diligence, the money could not have been collected or secured by any legal means.

Appeal from tbe Probate Court of Yazoo county. Hon. R. B. Mayes, judge. John Cason, after having made and published his last will and testament, died in the year 1836. Canada Cason, his executor, in October 1836, procured the same to be probated, and recorded in the Probate Court of Yazoo county, and qualified as executor. The will of John Cason, after making several specific bequests, devised and bequeathed all the residue of his estate of whatever kind, to the executor in trust, for John White, Hilary White, James Cason, (the appellee,) and John-T. Cason and Alexander Cason, in equal portions; and it provided that in case either of them should die before arriving at the age of twenty-one years without lawful issue, his share should go to the survivors in equal portions. John White, died, after attaining his majority; and Alexander Cason, died, on the 3d of September, A. D. 1853, while he was a minor. Canada Cason, returned an inventory of the personal property, which he afterwards sold under the order of the court. The sale amounted to $12,107 75; as shown by the report, though by an error in the addition, the aggregate amount is stated in the report to be one thousand dollars less. The executor made annual settlements in 1839, 1840, 1844, 1845, and 1847, and afterwards died without having made any final settlement, or having made distribution of the estate. By his last will and testament the appellant, John A. Cason, was appointed his executor, who as such, made a final settlement of the administrator of Canada Cason, in May, A. D. 1850. On the 31st day of January, A. D. 1853, the appellee, James Cason, in his own right, and as survivor of said Alexander Cason, filed his petition in the Probate Court of Yazoo county,-in which he alleged in substance the foregoing facts; and further, that the said pretended final settlement was void as to him and the said Alexander Cason, because no citation was personally served on them; and further, that they were at that time residents of the State of Louisiana, and that no legal publication of notice of said final settlement was made; that the said John A. Cason, did not make or file in said court an affidavit of their non-residence before procuring the order for publication; and that the said publication was ordered by the court against the “heirs of Canada Cason,” without specifying their names, and that the said Alexander being then a minor, and having no guardian, the court failed to appoint a guardian ad litem for him, and to have the said guardian cited. ■The petition also charged that the said final account, and the annual accounts were erroneous, and specified the errors complained of; and prayed that the said final account be annulled, and the account reviewed and corrected. The defendant below first pleaded in bar of the proceeding, the final settlement made in 1850. The plea being set down for hearing was overruled, and he then answered, denying the existence of the errors complained of, and relying upon the said final settlement as a bar to the relief claimed by petition. The court reopened and annulled the final settlement both as to James Oason in his own right, and as survivor of Alexander Cason. The accounts were referred to a commissioner, to re-state the account of the executor, under the instructions of the court. Upon the coming in of this report, the petitioner objected to it, because the commissioner in making the calculation of interest had charged the executor interest on the sums received up to the date of making his report, and had allowed him interest on his disbursements from the date they were made, up to the same time. The court sustained the exception, and ordered the commissioner to calculate the interest in the mode prescribed in the statute, where partial payments are made on contracts — crediting the disbursements first on the interest due by the executor at the time they were made, and the surplus on the principal. The exceptions filed by the defendants below necessary to be here noticed, are First. That the executor was charged with eight per cent, interest. Second. That the commissioner had charged the executor with the balance uncollected on two notes due by Pease and Hienlin, to the estate, and, Third: That he had disallowed a credit for $68, paid by the executor to one Gorman. All these exceptions were overruled by the court. So far as the question in relation to the validity of the final settlement, made in 1850, is concerned, the facts are: that at that time James Cason and Alexander Cason, were both non-residents of this State, living in Louisiana; that Alexander was a minor, and had no guardian; and that neither were personally served with notice. In February, A. D. 1850, the appellant filed his petition in the court below, asking permission to make a final settlement, and stating “that some of the heirs were non-residents, and praying for a publication of citation as to them. The record shows that thereupon publication for the time prescribed by law was ordered against the “heirs of John Cason;” and at the May term, 1850, the final account was examined and allowed, the citations to the heirs having been returned, executed, and due proof of publication being made as to the non-residents. There was no affidavit of the executor or of any other person, on file, stating the non-residence of any of the legatees or heirs, nor was there any recital in the record that such affidavit was ever made or filed. The publication was directed to James Cason, Alexander Cason, and others by name, as “heirs and distributees of John Cason.” No guardian ad litem was appointed for Alexander. The oral testimony introduced by petitioner to show that in fact no affidavit of non-residence was made by. the executor, is fully set out in the opinion of the court, as well as the evidence in relation to the other exceptions of the appellant, to the commissioner’s report. The Probate Court made a final decree confirming the commissioner’s report as amended, and ordering ■ the executor to pay Jaimes, the sum that was found due to him, as an original legatee, and also his share of the assets found due on account of Alexander Cason ; and the executor, John A. Cason, appealed. The final account and settlement should not have been re-opened or annulled as to complainant in his own capacity. First. From lapse of time; five years having intervened between said final settlement and filing complainant’s bill. Hutch. Code, 728, § 8. Second. Because final settlements of executors, administrators, and guardians, are conclusive (after the lapse of two years) as to all the world, unless the order of affirmance be reversed by some competent authority. Gildart v. Stark, 1 How. (Miss.) R. 454; Griffiths, adm’r,v. Vertner and wife, 5 How. 783; Smith v. Heard, 7 lb. 188; Hendricks v. Huddleston, 5 S. & M. 427. Such settlements are final and conclusive, except for fraud, after the lapse of two years from the term at which they are made. Stubblefield v. MHaven, 5 S. & M. 142; Harper v. Archer, 9 lb. 74; Stewart v. Davidson, 10 lb. 351; Hooker v. Hooker, lb. 599; Pendleton v. Prestridge, 13 lb. 302; Austin v. Lamar, 23 Miss. R. 190; Voorhees v. United States Bank, 10'Peters, U. S. R. 471,472. The record is conclusive proof of the judgment and decision of the court, and cannot be contradicted; 1 Phil. Ev. 317; 3 lb. 799, note 550, and authorities there cited; except for want of jurisdiction. 3 Phil. Ev. 799, note 551; Voorhees v. Bank United States, 10 Peters, R. 471, 472; Gregnor’s Lessee v. As tor et ad., 2 How. (U. S.) R. 319; Hardy v. Gholson, 26 Miss. R. 70. The main point raised and relied upon by the appellee, in the court below, (and which will doubtless be strenuously insisted upon here) was, that the Probate Court is a court of limited and special jurisdiction ; and as such, the record must show affirmatively that all preliminary steps — all the requisites prescribed by the statute — have been taken, to maintain the jurisdiction of the court; and upon this mistaken view of the case, it was decided below. But this question is well and clearly settled by the early decisions of this court. Blanton v. King et al., 2 How. (Miss.) R. 856; Carmichael et al. v. Broioder, 3 lb. 255, and more recently in the case of Jones et ux. v. Irving's executors, ¿•c., 23 Miss. R. 364. Also, Gregnor’s Lessee v. Astor et dl., 2 How. (U. S.) R. 341, and authorities referred to in that case. The statute (Hutch. Code, 682, § 12,) requiring in case of nonresident legatees, distributees and wards, an affidavit of the fact from the executor, administrator or- guardian, in cases of final settlement, does not require the affidavit to be made a part of the record, nor does it prescribe any particular mode or form for making it; it may be reduced to writing, or it may be by simple oral affirmation. As the affidavit is only intended for the information of the court, it is enough for the record to show, in general terms, that the law has been complied with. The record cannot be contradicted except for fraud. Gregnor’s Lessee v. Astor et al., 2 How. (U. _S.) R. 338 et seq. There is, also, manifest error, in the principle laid down by the court, for stating the account by the commissioner. Disbursements by an executor or administrator, should never be deducted from the interest arising from assets received by him, and remaining over in his hands, but from the principal. 2 Lomax, Ex. 346. The court erred in confirming the commissioner’s report, which charges the appellant eight per cent, interest on the whole amount of the' account of sales, as well as receipts, from 2d of January? 1838, to the time of stating the account. Hutch. Code, 643, art. 6, § 2; 2 Lomax, Exor. 344. The appellant should have been credited, in the account by the commissioner, with the sum of $65 paid Gorman, as Wm. J. Russell proves, the executor lived at a great distance, and the testator’s property was in such condition, at his death, as to require immediate attention. The appellant should also have been credited with the sum of $-, balance due on judgment against James H. Hunter and John E. Pease; as William G. Eussell and Burton Yandell prove that Pease was reputed solvent and good for the amount of Hunter’s purchase at the time of the sale. The Probate Court had also taken Pease as security on the executor’s official bond but a few months previously, as is shown by the record. It was likewise erroneous to charge the appellant with interest on the sum of $1285 28, from 21st November, 1886, (the time of its receipt, and but a few months from the time of granting letters testamentary) up to the time of stating the account. For these reasons, and the errors set forth, the judgment should be reversed, and the cause remanded with proper directions to the court below. Filed an elaborate argument, but it is not deemed necessary to report more than refers to the validity of final settlement, and the question of interest. I. Whatever may have been the legal validity and effect of the final settlement set up in the answer, it is obvious that it did not bar the rights of Alexander Cason. 1. The petition alleges, and the answer admits, that he was a minor when that settlement was made, and when he died. The limitation of two years upon bills of review therefore never commenced running against him. 2. The suit was commenced within less than two years from his death, and complainant being,.under the will, by his death, invested with his rights, took them in the same condition in which they then existed; and as to those rights, the statute only commenced running from that time. 8. This final settlement, and the order of the Probate Court allowing it, were, as we think, not only void on the general grounds hereafter stated, as to the complainants, but were void as to Alexander Cason, on the special ground that he was a minor without a guardian, and no guardian ad litem was appointed to represent him. The proof that no such order was made, is in the bill of exceptions. The Act of 1846, (Hutch. Code, 682,) declares in explicit terms, that no order or decree of the Probate Court shall have any validity as against a minor, unless made upon citation served on his guardian, if he has one, and if he has none, then upon a guardian ad litem, appointed by the court to represent such minor. The right of Alexander Cason, at his death, to maintain a bill of review, and for a final settlement, and for a decree for the amount due him, being wholly unembarrassed, could not have been extinguished by his death, and must have vested in those who, under the will, succeeded to his share of the estate. II. As to the direction given in the first decree for stating the interest -account against the defendant. The rule prescribed is, that the defendant shall be charged with interest on all money received by Canada Cason, as executor, and not necessarily retained by him for the payment of debts, from the period of six months after its. reception. This rule is certainly sufficiently liberal to an executor, and has the sanction of Chancellor Kent, and other high authorities. 1 John. Ch. R. 507; 2 Wend. R. 85, 86, 87; 2 Lomax, 346; 8 S. & M. 682, 689. III. The decree declaring the final settlement in the Probate Court void, is assigned as error by appellant. 1. If an order or decree of the Probate Court is void, that court has full power so to declare, and to treat it as a nullity. 12 S. & M. 650; 14 lb. 204. 2. We insist that the final settlement, and the order of court allowing-it, were void as against the complainant, because he was not before the court, and the court had no jurisdiction over him by any actual, or any legally sufficient constructive notice. Complainant was a non-resident of the State, and was not cited to appear in fact, as the proofs in the bill of exceptions show. The same proof shows that the only constructive notice which he had, was by a newspaper publication made by order of the Probate Court; and that this order was made without any affidavit having previously been made by the executor of the non-residence of complainant, as required by the Act of 1846. Hutch. Code, 682. The language of the statute is: — “And whenever any such legatees, heirs, distributees, or ward, shall be non-residents of this State, or reside beyond the jurisdiction of the court, so that the process thereof cannot be served on them, the said executor, administrator, or guardian, shall make affidavit of the fact, and the said Prolate Court shall thereupon cause publication to be made in some newspaper in this State,” &c. Upon the construction of this statute, and its operation in this case, we insist:— 1. That as it is in derogation of the common law in substituting constructive for actual notice, its effect is not to be extended ly construction beyond the plain import of its language. 2 Meigs, Dig. 784. 2. By the plain language of this act the making of the affidavit is a condition precedent to the investiture of the Probate Court, with thq power to make an order of publication. 27 Miss. R. 133. The power to make the order is not general in all cases where the party is a non-resident, nor, upon the court being satisfied that he is such, but the making of the affidavit, the performance of the antecedent act, is required, and the court is “thereupon” directed and empowered to make the order. If such language occurred in an ordinary letter of attorney, no one, I think, would doubt that the power was conferred on a condition, or that the condition must be performed before the power vested ; jurisdiction in a court is but power — the power to perform a judicial act — and if conferred upon condition, the court cannot dispense with the condition, or substitute something else in its stead, any more than can an ordinary agent, whose investiture with power is made to depend upon a condition precedent. 8 Cowen, R. 370. 3. That the affidavit was not made in this case is, we think, abundantly established by the proof contained in the bill of exceptions. But, 4. We insist that it is necessary to the validity of the order of publication, that the fact of the affidavit having been made, the jurisdictional fact should appear upon the record. Certainly the jurisdiction of a court must be proven by the party asserting the validity of its decrees or orders; and this can only be done by proving the fact on which the jurisdiction depends. The presumption of law is against the jurisdiction of the Probate Court, and every other court of special and limited jurisdiction; and the fact or facts on which its jurisdiction is dependent, must be affirmatively shown, and shown by the record, or the act of such a court is extrajudicial and void. 1 How. R. 439, 440; 6 lb. 234, 235; 1 S. & M. 368; 7 lb. 454; 9 lb. 622; 26 Miss. R. 141; S. & M. Ch. R. 562; 11 Wend. R. 648, 659, 652-654; 8 Cowen, R. 370; 8 Port. (Ala.) R. 99, 104; 4 Dallas, R. 8-11; 3 lb. 382, 383; 9 Wheat. R. 548, 549. The evidence contained in the bill of exceptions proves, in our opinion, as before remarked, that the affidavit was not made in fact — it certainly proves beyond dispute, that it does not appear from the records of the Probate Court, to have been made. It is true that the order of that court, allowing the final account, recites that due proof was made of the publication of notice, ¿■c. But this is a totally different fact. The publication of the notice was doubtless duly proven, but the fact that an affidavit was made, before the court at a previous term ordered the publication, is a totally different fact, and is not alluded to in this recital. 4. We insist that this order of publication is fatally defective on another ground. It is manifest that the statute designed that the Probate Court should be informed of two facts before making the order. First. Who the heirs, legatees, &c. to be notified were, and Second: That they were non-residents. Now, an examination of the order will show, that they are not named in it, nor even designated according to their true characters, as legatees; but that the order is, in general terms, that publication be made of the citation to nonresident heirs. The publication is not only thus directed to be made to them by a description or designation not applicable to them, but the office and duty of determining who were the heirs or legatees is, by the order, devolved on the clerk — an officer to whom-the law had never intrusted such powers. If such non-residents can be thus notified by general description, as a class, the notice in this case was not sufficient, because the order only directs notice to be given to the heirs, to which class complainant did not belong. If such parties can only be properly cited by name, then we insist that they must be designated by name in the order of the court; and not merely in the publication made by the clerk or some one else who may prepare it. On these various grounds we think the very astute and able judge, who presided in the Probate Court, rightly held the order of publication and all subsequent proceedings founded on it -void, for want of jurisdiction in the court. IY. The decision of the court, sustaining the exception of the complainant to the account first stated by the commissioner, is complained of. A simple statement of the point of controversy will be sufficient to vindicate the decision of the court. The commissioner, in making up his interest account,-computed interest on each item on both sides of the account, but did not compute interest on interest. The result was, that however large the amount of interest due by the executor, might at any time be, each payment or disbursement made by him was credited on the principal sum due, and went to reduce the debt on which the interest was accruing. We insisted, by this exception, that each payment or disbursement, made by the executor, should first be credited on the interest then due, and the balance only, if any, applied as a credit on the principal debt. The court held this to be the true mode of stating the interest account, and sustained the exception. This decision follows the analogy furnished by the statute in relation to computing interest in other cases of partial payments, and conforms to a rule of equity jurisprudence older than the statute. 2 Johns. Ch. R. 212, 218; 2 Wend. R. 85, 86, 87.