Fitzpatrick v. Beal

62 Miss. 244

• Court: Mississippi Supreme Court
• Decided: October 15, 1884
• Status: Published

Opinion

Campbell, C. J.,

delivered the opinion of the court.

The sale is not maintainable. If made under § 2113 of the code it is void, because of the want of compliance with its requirement that “ a summons shall issue for at least three of the near relations of the minor, if there be any in the State.” Temple v. Hammock, 52 Miss. 360.

If made with reference to § 2114, it is void, because that applies only where land is held by the ward as heir or devisee jointly with .other heirs or devisees, who must be summoned on the application of the guardian to sell for a separation of the interest of the minor from that of co-heirs or co-devisees.

This land had not descended to the minors and others. They were the only heirs of Mrs. Gates, and inherited from her the entire interest decreed to be sold.

Unless it be true, as ingeniously argued by counsel, that the minors were co-heirs as to each other, and as both had the same guardian there was no necessity for summoning the co-heir, who was represented by guardian, it is apparent that § 2114 is not applicable.

We think it manifest that this section applies only when the guardian seeks a decree of sale on the ground that an equal division of the land held by his ward and other co-heirs or co-devisees cannot conveniently be made. If the sale is sought for division of the interest descended or devised, it -is sufficient to summon co-heirs or co-devisees, but where the object is not to effect a division of joint interests but the application is to sell the minor’s interest, whether held in severalty or jointly with others, on the ground that it will be beneficial to the ward or for his interest, at least three of the near relations of the minor must be summoned, or it must be made to appear by the record of the proceeding for sale that they were not summoned because there were none such in this State. Erwin v. Carson, 54 Miss. 282.

When the sale is to be made for the maintenance and education of the ward, because of the insufficiency of the personal estate and the rents and profits of the real estate for that purpose, or if it should be deemed most advantageous to the interests of the ward to sell'real estate in preference to the sale of personal estate for the maintenance and education of the ward, as provided by § 2109 of the code, a summons is not necessary, but the court may act on the application of the guardian.

Decree reversed and hill dismissed.