Bernheimer v. Calhoun

44 Miss. 426

• Court: Mississippi Supreme Court
• Decided: October 15, 1870
• Status: Published

Opinion

SlMRALL, J.:

This suit in chancery was brought by Samuel and Adolph Bernheimer, partners under the firm name of Bernheimer & Bro., who sue for the use of Henry F. Labenberg, Lewis Heifer, Joseph W. and John IT. Hart, under the firm name of Joseph Hart & Sons, and Mary A. Harper, administratrix of E. W. Harper, deceased, against J. Chambliss Calhoun, administrator of John S. Chambliss, deceased.

The only question is, whether these complainants, several and separate creditors of the estate of John S. Chambliss, deceased, can recover their several debts by bill in chancery. It is maintained by the counsel for the creditors, that the act establishing the chancery courts, approved 4th May, 1870, authorizes a suit by a creditor at large, to recover moneys due against the legal representative of a-decedent. The 16th section of article 7 of the constitution, confers upon the chancery court “full jurisdiction in all matters of equity and of divorce and alimony, in matters testamentary and of administration,” etc. The third section of the act of 4th of May, adopts' literally this section of the constitution, as defining in general terms, the jurisdiction of the court.

In the organization of the judicial system under the constitution, the powers and jurisdictions, heretofore belonging to the probate courts, and also the powers, authority and jurisdiction of the chancery courts, were merged into one, and confided to the chancery courts of the several counties. So that the chancery courts have full jurisdiction in “all matters of equity,” as well as over the subjects heretofore confided to the probate courts.

In the case of Angeline A. Wells v. I. Smith, administrator, etc., at this term, we held that the mode of procedure in the exercise of the probate jurisdiction, was according to the practice prescribed in the statutes on those subjects, and not according to the ordinary modes of procedure in the chancery courts. The 24th section of the act of 1870, to which we have been referred by the counsel for the creditors, does not sustain the right to the relief sought in this bill. We suppose this section, by the use of general words,' was meant to declare, that all persons interested in estates, whether heirs, distributees, legatees or creditors, could, in the chancery court, bring forward all matters and questions for adjudication, in relation to the execution of the duties and trusts of these fiduciaries, and likewise they could, on proper proceedings, have heard and determined the liabilities of such parties, and the sureties on their bonds. The scope of the section looks to remedies against these trustees, for a proper and legal performance of their duties for the protection ultimately of those interested in the estate. It is a transfer by general descriptive words, to the chancery courts, of the precautionary and preventive remedies used in the probate courts, and also such as respected the faithful discharge of the fiduciary trusts; and is not designed tr enlarge the powers of the court, so as to enable a creditor who had simply a legal demand against the estate, to recover upon it by bill in chancery.

■ These complaints have each a separate demand, represented by promissory note or open account, against the estate. The remedy at law is full, adequate, and unembarred; there 'is no community of right among them; they do not prefer the ordinary creditor’s bill; there is not an element of equity in their claims, jointly or separately. The bill simply discloses the fact that these complainants have due them, separate debts against the 'estate of the intestate, recoverable in separate actions at law, for which they pray a decree against the administrator.

The decree of the chancery court, sustaining the demurrer and dismissing the bill, is affirmed, but without prejudice to the complainants to bring other appropriate suits.