Connell v. Cazenueve

delivered the opinion of the court.

Mrs. Anna E. Connell prosecuted this appeal from a decree of the chancery court amending and approving the. final account of Jos. P. Cazenueve, executor and trustee of the last will and • testament of Ella E. loor. It is necessary to state briefly the facts giving rise to this appeal. Ella E. loor died testate. Item 1 of' her will provided for the payment of her debts and funeral expenses. Item 2 devised and bequeathed the residue of her property to her executor as trustee, and -required him, among other ‘ things, out of her estate to maintain and support her brother, Peter H. íoor, so long as he lived, and at his death all of her remaining property was bequeathed to her cousin, Mrs. Anna E. Connell (the appellant). Item 3 appointed Jos. P. Cazenueve executor.

The brother of the testatrix, Peter H. loor, was an old man and a non compos mentis. The estate left by Miss loor- consisted principally of several "thousand dollars in money.

Jos. P. Cazenueve duly qualified as executor, and also was appointed guardian of the person and estate of Peter H. loor'; both estates being administered in the chancery court of Hancock county. Shortly after his appointment as executor and in that matter, he filed an ex parte petition asking the court whether or not he should pay for the support of Peter loor, and, if so, what amount. ' The court entered an order authorizing him as executor to pay the guardian of Peter H. loor for his support the sum of fifty dollars per month. Under this order four hundred and fifty dollars and twenty-one cents was paid by the executor to the guardian. "Shortly thereafter the appellant, Mrs. Anna E. Connell, filed a petition in the chancery court making defendants thereto the executor of the estate of Miss Ella E. loor,, the non compos mentis Peter loor, and his • guardian. *574It so happens that the executor and the guardian are one and the same person, Jos. F. Cazenueve. In this petition Mrs. Connell, after quoting the provisions of the will óf Ella loor and setting up the fact that petitioner was the residuary legatee, further alleges that the testatrix only intended that Peter H. loor should he supported out of her estate after his estate was exhausted, and that the estate of Peter loor was amply sufficient to provide for him. It then recites the ex parte order of the court authorizing the executor to expend fifty dollars a month in the maintenance and support of Peter loor and claims this order to be erroneous and void. Petitioner prayed that an order he entered that neither the principal nor income of the estate of Ella E. loor he drawn upon for the support of Peter loor until the estate of Peter loor be exhausted. Petitioner also prayed for general relief. On March 1,1917, the chancellor entered a decree in this matter reciting that it was heard on petition and proof. The decree found all of the allegations of the petition to he true, granted the prayer of the petition, set aside the previous order relating to the support of Peter loor, and forbade the executor to expend any further money out of this estate for the support of Pefer loor until the estate of Peter loor he exhaused. It further decreed that Jos. F. Cazenueve, as guardian of the person and estate of Peter loor, refund to the executor of Ella loor the amounts advanced for the support of Peter loor. Some time thereafter Peter loor died. The executor of Miss Ella Ioor’s estate filed his. final account in that estate showing as on hand the four hundred and fifty dollars and twenty-one cents paid him by the guardian of Peter loor under the above decree of the court. In the guardianship matter of Peter loor the guardian, Cazenueve, also filed his final account, showing that as guardian he had complied with the decree of the court and paid this money over to himself as executor. After the filing of these two final accounts in these separate *575estáte matters, the heirs at law of Peter loor filed a petition in the guardianship case, which in effect claimed that-, nndér the will of Miss loor, Peter loor should have been supported out of her estate, and these heirs prayed that the executor he required to repay this money to the guardian, and that the decree of the court of March 1, 1917, was void, and that it he set aside. An order was then entered hy the lower court consolidating these two causes, namely,, that of the estate of Ella loor and the guardianship estate of Peter loor. On a final hearing the court set aside the decree of March 1, 1917, and ordered this sum of four hundred and fifty dollars and twenty-one cents to be paid by the executor to • the guardian. In other words, on final hearing, the chancellor decreed that Peter loor during his lifetime should have been supported out of the estate of Ella loor. Prom that decree ‘this appeal is prosecuted.

The appellee has filed in this court an assignment of error and cross-appeal, thereby attempting to challenge the validity of the decree of. March 1, 1917, above referred to. A motion was duly filed to dismiss this cross-appeal for various reasons unnecessary to set out.

The determinative question presented by this appeal is whether or not the decree of Ma'reh 1, 1917, was a final or an interlocutory decree. The petition of Mrs. Connell sets out the terms of the will of Ella loor. It. asks for a construction of that part of the will providing for the maintenance and support of her brother. All necessary parties were duly summoned and were before the court when this decree was entered. This decree construed that part of the will involved in the controversy. The court was thoroughly advised by the pleadings and by the facts. There was nothing further for it to adjudicate So far as this item of the will was concerned, unless a different status should arise, namely,» the exhaustion of the estate’of Peter loor. No appeal was prosecuted from this decree, and if it was a final *576decree, the one-year statute of limitations pertaining to appeals (chapter 222, Laws of 1916; section 2476, Hemingway’s Code) has long since passed .and had passed when the cross-appeal was attempted to he taken. If this was a final decree, then the chancellor was powerless at subsequent term of the court to modify or in any way change it. The only remedy of the aggreived parties was by appeal. If it was an interlocutory decree, then the chancellor had the power at any time until the final decree to change or modify it in any way. Cook’s Heirs v. Bay, 4 How., 485. In that case the court said:

“A final decree is one which makes -an end of the case, and decides the whole matter in controversy, and determines the costs, and leaves nothing further for the court to act on.”

In discussing the nature of a final decree and the power of a court at a subsequent term to modify or change it, Judge Simball, in the opinion of the court in Ledyard v. Henderson-Terry Co., 46 Miss., 260, said:

“It is conceded by the counsel for the appellees that, if the decree against Dobbs referred to in the motion was ‘final,’ then there was no power in the court at a subsequent term to set it aside. ’ ’

We understand counsel for the appellees in the present case to concede the soundness of this rule. In differentiating between a final and'an interlocutory decree the same able jurist in the above opinion quotes with approval from Harr. Ch. Pr.1 622, the following definition of a final decree:

“When all the circumstances and facts necessary to a complete explanation of the matters in litigation are brought before the court and so fully and clearly ascertained by the pleadings on both sides that the court from them is enabled to collect the respective merits *of the parties litigant, and upon full consideration determines between them according to equity and good conscience. ”,

*577He then quotes this definition of an interlocutory decree: “It is interlocutory when some material fact is either not stated in the pleadings so that the court cannot determine ‘finally’ and makes1 a reference or directs an issue, and in. the meantime suspends final judgment until the fact is so ascertained as to enable it to- pronounce finally.”

In the case of McDonald v. McDonald, 68 Miss., 689, 9 So. 896, the court declined to dismiss an appeal, and there tersely states: ‘‘The decree was a final one as to the matters embraced, and enforceable by final process. ’’

In the case before the court there was a final construction of the right of Peter loor to.be supported out of the estate of Ella loor as long as he had sufficient estate of his own. That was a final decision of the matter in controversy. There was nothing reserved by-the court for decision. The simple question presented to it was to construe that item of the will, and this it did. The complete relief prayed in the petition was granted by the court. No further action of the court was necessary in regard to this item of the will. It was construed and this construction of the court was final if not set aside during that term. The only remedy left the aggrieved parties was by direct appeal.

In dicussing the difference between a final and an interlocutory decree Judge Coo-pee, in the opinion in the case of Humphreys v. Stafford, 71 Miss., 135, 13 So. 865, quotes the distinction laid down by Judge Baldwin in Cooke’s Adm’r v. Gilpin, 1 Rob. (Va.) 20, as follows:

“Where the further action of -the court in the cause is necessary to give- completely the relief1 contemplated by the court, then the decree upon which the question arises is to-be regarded not as final, but interlocutory. I say the further action in the cause to distinguish it from that action of the court which is common to both final and interlocutory decrees, to wit, those measures which are necessary for the execution of a decree that has *578been pronounced, and wbicb are properly to be regarded as adopted, not in,.but beyond tbe cause, and as founded on the decree itself or mandate of the court, without respect to the relief to which the party was previously' entitled upon’ the merits of his case.”

While this controversy arose during the administration of the estate of Ella loor, it was a separate controversy between the residuary legatee, the executor of the estate óf Ella loor, Peter loor, and his guardian, involving the construction of an item of the will. In construing this item the court finally adjudicated the respective rights of the parties relating thereto. This decree was final, and.since no appeal was taken from it within one year, this court is powerless to inquire into its correctness. This being the opinion of the court, it therefore follows that it is unnecessary to consider the motion to dismiss the cross-appeal or any questions raised thereby.

jReversed and remanded.