Duke v. State

57 Miss. 229

• Court: Mississippi Supreme Court
• Decided: October 15, 1879
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

This is a suit upon an administrator’s bond to recover the amount due the plaintiff, as one of the distributees of the estate of his deceased grandfather, as shown by the final settlement of the administrator’s account. The administrator, being now a non-resident, is not sued; but the suit is defended by his sureties, who plead payment. In support of their plea, they offered a record from the Probate Court of Pontotoc County which showed that, immediately after the administrator’s final settlement, he had been by said court appointed guardian of the plaintiff, who was then a minor, and had charged himself as guardian with the amount due by himself as administrator. This record was upon objection excluded, because it showed upon its face (by a recital in the guardian’s bond) that the minor was, at the date of the appointment of the guardian, a resident of Tunica County, and thereby demonstrated that the Probate Court of Pontotoc County had no jurisdiction to make the appointment.

This action was correct. By the Constitution of 1832, art. 4, § 18, and by the Code of 1857, p. 459, art. 142, under which this appointment was made, it is manifest that our old Probate Courts were county courts in their dealings with minors, and had no jurisdiction to appoint guardians for those who were not residents of the county, save when they were non-residents of the State, and had property in the county where the appointment was made. The Probate Court of Pontotoc County having no authority to make the appointment, every thing done under it was a nullity. Earle v. Crum, 42 Miss. 165.

It follows that the qualification by the administrator as guardian, and the charging of himself in that capacity, did not in any manner affect his liability as administrator, or relieve those who were sureties for him in that behalf.

Judgment affirmed.