Ellis v. Witty

63 Miss. 117

Opinion

Campbell, J.,

delivered the opinion of the court.

The term “ estate” in §1981 of the code has relation to the rights, powers, and duties of the executor or administrator with the will annexed. It is variable in its import, and determinable by the cii’cumstances of each case. If the personal estate is small in value and the real estate large, and no power is conferred on the executor as to the real estate, there would be no propriety in requiring of the executor a bond to cover the value of the realty ,* and if the personal estate was large and the real estate small, and the personalty was all bequeathed and to go immediately to legatees, while power was conferred on the executor over the realty, it would be improper to exact a bond in the full value of the personal as well as real estate as the condition of granting letters. The powers and duties of an administrator are defined by law, and the bond prescribed for him to obtain letters is “ the value of all the personal estate” (§ 1995), because all such estate is committed to him, but the powers of the executor depend upon the will (§ 1983). Therefore, reference should be had to the will, in order to determine what estate is committed to him, and a bond should be required of him equal in its penalty to the full value of that.

In this case power is plainly conferred on the executors to charge the whole estate of the testator in a certain contingency, that is : if the testator was engaged in mercantile business at his death, and the executors determined to continue it, as authorized by the will, and contract debts incident to it. What are the facts as to this does not appear in the record. Prima fade, a bond should have been required in this case equal to the full value of the whole estate, real and personal, since power over all was conferred on the executors.

The sureties on the bond, being legatees, with no property except as derived from the testator under his will, are not sufficient.

Decree reversed and cause remanded.