Gammage v. Noble

Court of Appeals of Mississippi

Gammage v. Noble

24 Miss. 150

DecidedApril 15, 1852

StatusPublished

This text of 24 Miss. 150 (Gammage v. Noble) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gammage v. Noble, 24 Miss. 150 (Mich. Ct. App. 1852).

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Opinion

Mr. Justice Yerger

delivered the opinion of the court.

This was a petition by the guardian of certain minors for distribution by the administrator of the estate in his hands. More than twelve months had expired, and the distributees were entitled, as this court has repeatedly held, to distribution, upon tendering a refunding bond. This bond was tendered by the guardian. The probate court sustained a demurrer to the petition, and ordered it to be dismissed. This, we believe, was erroneous. The demurrer to the petition should have been overruled, and distribution should have been ordered according to the prayer of the petition. The point that has been mainly relied on by the appellees to sustain the opinion of the court below, to wit, that the petition for distribution is in the name of the guardian, does not form a valid objection to the petition. In the case of minors, we do not think any valid reason exists, why a guardian should not petition in his own name for distribution to be made of his ward’s estate.

The statute provides, that when distribution is made, “ the court shall have power to order the said distributive share, or other property belonging to such orphan, to be delivered to such [151]*151guardian immediately,- or at such time as shall appear reasonable.” Hutch. Code, p. 504, § 147.

As the guardian is to have the custody of the ward and of his property, and gives bond for the faithful execution of his trust, we see no valid objection to the petition for distribution being-filed in his own name.

Let the judgment of the probate court be reversed, the demurrer of the defendant overruled, and the cause remanded for further proceedings.

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Mr. Justice Yerger

delivered the opinion of the court.

This was a petition by the guardian of certain minors for distribution by the administrator of the estate in his hands. More than twelve months had expired, and the distributees were entitled, as this court has repeatedly held, to distribution, upon tendering a refunding bond. This bond was tendered by the guardian. The probate court sustained a demurrer to the petition, and ordered it to be dismissed. This, we believe, was erroneous. The demurrer to the petition should have been overruled, and distribution should have been ordered according to the prayer of the petition. The point that has been mainly relied on by the appellees to sustain the opinion of the court below, to wit, that the petition for distribution is in the name of the guardian, does not form a valid objection to the petition. In the case of minors, we do not think any valid reason exists, why a guardian should not petition in his own name for distribution to be made of his ward’s estate.

The statute provides, that when distribution is made, “ the court shall have power to order the said distributive share, or other property belonging to such orphan, to be delivered to such [151]*151guardian immediately,- or at such time as shall appear reasonable.” Hutch. Code, p. 504, § 147.

As the guardian is to have the custody of the ward and of his property, and gives bond for the faithful execution of his trust, we see no valid objection to the petition for distribution being-filed in his own name.

Let the judgment of the probate court be reversed, the demurrer of the defendant overruled, and the cause remanded for further proceedings.

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Bluebook (online)

24 Miss. 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gammage-v-noble-missctapp-1852.