Weaver v. Williams

delivered the opinion of the court.

The first assignment of error is too broad. The court did not render a personal decree against J. M. and W. P. Weaver for the amount of any notes except those of J. M. Weaver, T. J. Madox and O. B. Henderson, and as to these the decree was manifestly correct, on the proof in the record. What was done as to these notes was clearly a joint conversion of them. Henderson’s note and Madox’s note were both surrendered, and never returned into court, nineteen dollars of Doc Henderson’s note having been paid for W. P. Weaver’s benefit. J. M. Weaver’s note was returned into court with the name torn off. It is unnecessary to set out in detail the testimony. It is perfectly clear that the two Weavers acted jointly in the conversion of these notes and the money. The contention that these three notes are assets, to be collected only by an administrator to be appointed, is not maintainable on the facts here. As *954shown, these notes were not returned as assets. It is not for these parties to deal, as shown by this record, with these notes, and then call them assets. They distinctly converted them, and have never returned them, and are liable for their value. The authorities cited are not applicable here. The chancellor ruled rightly as to this.

The contention that these executors de son tort have paid debts which should have been credited on the personal decree is also untenable, for the obvious reason that the proof utterly fails to show that the debts which they claim to have paid were valid charges against the estate — charges such as a rightful executor would have been protected in paying.

We have said, in Gay v. Lemle, 32 Miss., 312, “There is no authority, and there can be no reason, for holding that he [an executor de son torf\ is justified in applying the assets to the payment of debts which the rightful executor would not have been authorized to pay. ’ ’ The loose, vague, uncertain testimony here on this point is utterly unsatisfactory. The observations of the court in Hardy v. Thomas, 23 Miss., 546, 547, are to be specially noted, the court declaring: “ If a party see fit, without authority of law, to intermeddle with an estate, to pay debts, and sell property for that purpose, all he can rightfully ask is the privilege of proving a claim against the estate for the sums so paid, and demanding payment from the administrator, rata-bly with the other creditors.” We do not, of course, mean to be understood as saying that if the claims’ were legal charges against the estate, and have been paid by the executors de son tort, they could not here diminish the recovery by their amount. We call attention merely to the case in 23 Miss., supra, in view of the dealing with these notes, resting our approval of the chancellor’s action in this respect upon the total failure of the testimony to show that any claims alleged to have been paid were such as were legal charges against the estate.

It was error to award interest against appellants on the money taken from the body of decedent, from May 1, 1893. She died *955in May, 1894. And so it was also error to allow the interest on the Madox note from May 1, 1893 — its date. Interest for the first year was in its face. Interest should have been awarded from its maturity. And, as no rate of interest is shown as to the Henderson note, six per cent, should have been taken as the rate.

It is also clear that the rights of the parties should have been fixed, in both personalty and realty, per stirpes, and not per capita, and that the interest of Frank P. Allen should have been taken into account. These mistakes the chancellor was very naturally led into by the pleadings. Nowhere is any sister mentioned, and yet there were two sisters, it seems. This appears to be so, though very vaguely. The bills both proceed on the theory that the complainants and defendants were each entitled to the same share, and the final decree, following the pleadings, so states. The amendment by which Frank P. Allen was brought in was made March 21, 1896, appearing by way of amendment to the answer or so-called cross bill, while the amended bill was filed January 13, 1896, before this date; said Allen’s interest not having been heard of till March 21, 1896. No notice seems to have been taken of this thereafter. The chancellor, therefore, was most naturally misled by the highly irregular method pursued in the pleadings and proof. But as the fact seems to be that Frank P. Allen is entitled to one-fourth of the entire estate, the decree is erroneous in ascertaining and fixing the rights of the parties in both personalty and realty. Some criticism of the form of the decree is made. The proper form of decree is given in Witcher v. Wilson, 47 Miss., 663.

For the errors indicated, the decree is reversed and the cause remanded, to be proceeded with in accordance with this opimion.