Anderson v. Newman

60 Miss. 532

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

The demurrer of T. N. L. and James A. Anderson was rightly overruled. They had answered the bill and could not, thereafter, and while said answer remained on file, interpose a demurrer. Story’s Eq. Pl., sect. 462.

Besides, the demurrer was not well taken. The sole ground of demurrer is, that by the bill it appears that the complainants had commenced proceedings at law for the recovery of the debt which is the foundation of the bill. This did not preclude them from prosecuting, at the same time, with the action at law, this bill to subject property fraudulently conveyed by the defendants. Speight v. Porter, 26 Miss. 286 ; Payne v. Howell, 40 Miss. 498.

The plea of T. N. L. Anderson, administrator of the estate of T. N. L. Anderson, deceased, was a sufficient answer to the bill in so far as it sought to fix a charge against the estate of his intestate. The creditors of the estate, whose debt was, as is alleged, paid by the appropriation of the assets of Anderson & Co., and to whose rights, as creditors of said estate, complainants seek to be subrogated, could not have proceeded against the administrator for the purpose of collecting their debt within the period of six months next after the grant of letters of administration, and the complainants can have no higher right than had those persons whose place they seek to take by subrogation. Code 1880, sect. 2086.

This provision applies in all actions in which the administrator is a necessary party defendant. Reedy v. Armistead, 31 Miss. 353.

The demurrer by the heirs at law of T. N. L. Anderson, deceased, should have been sustained. If the complainants have any claim against the estate of their ancestor, they may in proper time proceed against the administrator to compel its payment. He stands as the sole representative of the personal estate, and creditors have no right to go against the heirs until the personalty is exhausted or is deficient for the payment of the debts of the intestate.

The decree overruling the demurrer of the defendants T. N. L. Anderson and J. A. Anderson is affirmed, that overruling the plea of the administrator and the demurrer of the heir’s is reversed, and cause remanded with instructions to the -Chancery Court to abate the suit as to these parties.