Ex parte Buck

40 Miss. 239

• Court: Mississippi Supreme Court
• Decided: April 15, 1866
• Status: Published

Opinion

Handy, C. J.,

delivered the opinion of the court.

This is an appeal from an order of the Court of Probate, disallowing a report of commissioners alloting to the widow and children of R. L. Buck, deceased, besides other things, the sum of $6,000, in money, for the purpose of purchasing one year’s provisions for them. The court set aside this allowance, and recommitted the matter to the appraisers, with directions to allow a sum for the year’s provisions not to exceed $3,000.

The only question made in the matter is whether the court had the power to disallow the report; and it is insisted, in behalf of the widow, the appellant, that the appraisers were made by law a special tribunal, whose allotment was final and conclusive, and was beyond the power of the court.

"We do not agree with this view. If the power of the court, in the matter, depended on article 172, Rev. Code 469, as counsel supposes, it is very clear that the report was subject to the control of the court. That statute, it is true, merely requires that appraisers, after setting apart the allowance, “ shall report their proceedings to the Probate Court.” But to what end ? It is said, merely that the court might, thereby, be informed what sum had. been allowed, and taken out of the assets of the estate, with reference to the subsequent administration of the estate. But more than this was intended by requiring a report to be made to the court. It was that the court should determine whether the allowance made was, in all respects, proper and should be ratified; and this, upon the theory, which has often been sanctioned by this court, that the acts of ministerial officers, required to be reported to the court, are only binding when they become the acts of the court, and that they only become so by its ratification. This is the rule held in regard to sales of the real estates of decedents; which, though merely required by the statute (Hutch. Code, 667) to be reported to the court, have been held not to be complete until ratified by the court. Learned v. Matthews, at this term.

But, in addition to this, the act of February 8, 1860, chap. 313 — which is an amendment of the article of the Rev. Code relied on for the appellant — expressly requires that the court shall take care that the rule of allowance of a year’s provisions, established by that act, be observed by the appraisers and shall correct their reports accordingly. This act positively places the whole matter under the power of the court, if there had been any doubt upon it under prior statutes.

The decree is affirmed, and the case remanded , for further proceedings.