Rayborn v. McGill
Rayborn v. McGill
Opinion of the Court
Arnetta McDonald died testate on October 17, 1960. Her will, dated May 31, 1960, devised and bequeathed to her niece, Emma Rayborn, her home and one-third of forty acres of land upon which it was situated. The will further provided that Rayborn was to have certain cattle, “and $1,500 which is in the Commercial National Bank and Trust Company of Laurel, Mississippi.” The will devised and bequeathed the remainder of her estate to her nephew, Jim McGill. Testratrix had no children or husband surviving her. This will was duly probated, and Rayborn was appointed executrix of the estate.
The chancery court found that the intervention of McGill was proper, directed issuance of a subpoena duces tecum to the bank for all records pertaining to this savings account, and set the cause for hearing. The executrix then filed a motion to dismiss the intervention, on grounds that the court did not have jurisdiction to permit an intervention contesting allegations of the inventory; and these matters should be determined in a separate suit which might be brought subsequently by the executrix for the state. The court sustained this motion, but allowed McGill to amend. He amended the petition of intervention by changing it to a “contest of one item of inventory”, and the court overruled a later motion to dismiss it.
In short, the interlocutory decree permitted McGill, the residuary devisee and legatee, to intervene in order to contest that part of the executrix’s inventory asserting that McGill owed the estate approximately $3,800.
This interlocutory appeal was improvidently taken and was not authorized by Miss. Code 1942, Rec., Sec. 1148. It will not settle “all the controlling principles involved in the cause”. In fact, it will not settle any of the principles, since the issue is whether testatrix made an inter vivos gift. Sec. 1148 further allows interlocutory appeals “in exceptional cases to avoid expense and delay”, but no expense and delay have been avoided by this appeal. On the contrary, the parties have been put to the unnecessary expense and delay of six months in finally disposing of this relatively limited issue presented by McGill’s intervention. Griffith, Miss. Chancery Practice (1950), Sec. 680, 682-684; Byrd v. Caston, 137 So. 2d 519 (Miss. 1962).
Since this appeal was improvidently granted and was not authorized by statute, we, of our own motion, hold that it must be and it is hereby dismissed.
However, in order to avoid further delay and disposition of this matter, it is proper to state that the chancellor was correct in permitting- McGill’s intervention and in overruling appellant’s motion to dismiss it. Code Sec. 547 provides that any person interested may petition the chancery court to require an executor to make a more perfect inventory of the assets of the estate, where the inventory fails to contain a full account of all chattels and effects of the deceased. Lindeman v. Herbert, 188 Miss. 842, 193 So. 790 (1940). Conversely, we think that that this statute' (and related ones) authorize an interested person to petition the court for leave to intervene and to require an executrix to correct her inventory by removing therefrom an item incorrectly
Appeal dismissed.
Reference
- Full Case Name
- Rayborn, Etc. v. McGill
- Cited By
- 2 cases
- Status
- Published