Opinion
No. 31685.
May 20, 1935. Suggestion of Error Overruled September 16, 1935.
1. PARTIES.
All persons who are materially interested legally or equitably in subject-matter of suit should be made parties therein, but persons who have no legal or equitable interest or right in subject-matter need not be made parties.
2. EXECUTORS AND ADMINISTRATORS.
Petition by war veteran's widow against administratrix and her bondsmen to review previous proceedings whereby administratrix distributed to various persons sums due to veteran under federal acts held not demurrable because distributees were not joined as parties, where money involved, under federal and state statutes, belonged to widow as sole distributee, and persons to whom administratrix distributed money were strangers to estate so far as widow's rights were concerned (Code 1930, sec. 1744).
APPEAL from chancery court of Marion county.
HON. T. PRICE DALE, Chancellor.
In the matter of the estate of Joe Lewis, deceased, wherein Gussie Lewis filed a petition against Cora Jefferson and others. From a judgment dismissing the petition after sustaining defendants' demurrer, petitioner appeals. Reversed and remanded.
J.N. Yawn, of Brookhaven, and G. Wood Magee, of Monticello, for appellant.
The bill of complaint was filed under the provisions of Section 1744, Mississippi Code of 1930.
This statute provides specifically that a bill of the nature here shall not be governed by the rules applicable to bills of review in chancery, but that it shall be the duty of the court to correct any errors of law or fact appearing in the final settlement, etc.
Section 1404, Code of 1930, was wholly disregarded, and this was the mistake of law or fact the Chancellor was called upon by the bill to correct. In sustaining the demurrer the Chancellor declined to correct this error, but he made the decision because, as he thought, the parties who received any of the funds should be made parties to the suit. We think this was clearly an error on the part of the Chancellor. We know of no reason why the ones to whom these funds were distributed should be made parties to the bill in this case; and certainly there is no legal requirement for making them parties to the bill. When an executor or administrator misapplies funds coming into his hands he and his bond are liable. The question of liability of the parties who were wrongfully and unlawfully paid the funds or who wrongfully and unlawfully received the funds is a matter between the executor or administrator and these parties. The rightful owner of the funds has nothing to do with this question.
Rawls Hathorn, of Columbia, for appellees.
In our humble judgment, the bill of complaint filed in this case is not a bill to open or falsify the final account of the administratrix, but it is a bill to have appellant declared the sole and only heir of Joe Lewis and make her the sole distributee.
While she designates her bill a bill to open the account of the administratrix, she also prays that she be declared the sole heir at law and distributee of the deceased, and for judgment against the administratrix and her sureties for the full value of the corpus of the estate, hence she cannot escape the fact that her bill is in fact not for the purpose of opening or surcharging the account, but for the purpose of having herself decreed to be the sole heir, and distributee. This being the real relief sought by appellant, she should either be required to follow the statutory method of having herself declared the sole heir of the deceased, or at least she should be required to make all persons parties defendant to her bill that the statute requires to be made parties, where bill or petition is filed under the statute, Sections 359, 360 and 361, Code of 1930.
Conceding that appellant's bill is one solely for the purpose of opening the account of the administratrix, still under the law the brothers and sisters of the deceased, under the facts as reflected by appellant's bill and exhibits thereto, are necessary parties since rights which have been given them by decree of the court are being dealt with.
24 C.J., page 1039, par. 2496, and page 1040, par. 2497; Williams v. Williams, 43 Miss. 430; Dillon v. Bates, 39 Mo. 292; Reinhart v. Gartell, 33 Ark. 727; Pierce v. Materzold, 126 Minn. 445, 148 N.W. 302; Murphy v. Harrison, 65 N.C. 246; Finn's Estate, 19 Pa. Dist. 773; Audenried's Estate, 31 Pa. Co. 198; Turnbull v. Buford, 119 Va. 304, 89 S.E. 233; Van Winkle v. Blackford, 33 W. Va. 573, 11 S.E. 26; Gray v. Harris, 43 Miss. 427.
In connection with and as throwing light upon the question of whether or not the administratrix misapplied or wrongfully paid out the funds of the estate, we call the court's attention to the case of Lowry v. McMillan, 35 Miss. 147.
Appellant does not question in her brief, as we understand it, the propriety of demurrer for want of proper parties, but inasmuch as the error assigned is, broadly, that the court erred in sustaining the demurrer, we cite the following cases holding that demurrer is the proper procedure, where the bill shows on its face parties interested, and who are not made parties to the suit:
Champlin v. McLeod, 53 Miss. 484; Whitney v. Cotton, 53 Miss. 689; Rodd v. Durbridge, 53 Miss. 594; Yates v. Council et al., 102 So. 176; Griffith's Chancery Practice, pars. 147, 149.
Joe Lewis, the husband of appellant, died on September 11, 1931, intestate. Lewis was a soldier in the World War, and at his death there was due to him the sum of two hundred ninety-nine dollars and eighty-three cents as a disability allowance from the federal government. Soon after the death of Lewis, his sister, Cora Jefferson, appellee here, applied for and was granted letters of administration. In the petition for the letters it was averred that the deceased left no children and that the wife of the deceased was absent and had not been heard from for some time.
After the money had been collected by the administratrix, she filed a report and final account, in which she undertook to set out the names and addresses of a number of supposed distributees of the estate, being several of the relatives of the decedent, and in this report and final account appellant, Gussie Lewis, was included as the wife of the decedent, her post office address being given, and to whom it was averred there would be due, as a distributee, an amount equal to a one-sixth undivided interest. A final decree was subsequently entered authorizing the administratrix to make distribution accordingly.
Within two years thereafter, appellant filed her petition under section 1744, Code 1930, to review and correct the previous proceedings. The administratrix and her bondsmen only were made parties defendant to this petition. The respondents demurred to the petition because the various persons to whom distribution was made were not joined as parties; the demurrer was sustained; petitioner declined to amend; and her petition was dismissed.
In De Baum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, we held that the sums due under the federal acts to war veterans descend as provided by those acts, and, in the absence thereof, then according to our own statutes of descent and distribution. There is no suggestion by appellees in contravention of the asserted claim by appellant that under both the federal and state statutes the money involved in this matter went to the widow as the sole distributee; there being no children. And, when the administratrix, knowing that the widow was alive, distributed the property to those other than the widow, it was as if the administratrix had given the same away to the first persons whom she happened to meet on the street.
It is true that the rule is that all persons who are materially interested legally or equitably in the subject-matter of a suit ought to be made parties therein. The converse is equally true that persons who have no legal or equitable interest or right in the subject-matter are not to be made parties. The administratrix, as shown by her sworn petition and report above mentioned, was not in ignorance of the controlling facts; and the persons to whom she made distribution in this matter had no sort of legal or equitable right thereto or therein; they are utter strangers to this estate, mere intruders, so far as concerns any of the rights of the petitioner; and therefore the petitioner ought not to be saddled with the burden of bringing them in as parties or otherwise. Petitioner is entitled, under the facts so far as disclosed by the present record, to look solely to the administratrix and her bond. It was error to sustain the demurrer.
Reversed and remanded.