George v. Elms

46 Ark. 260

• Court: Supreme Court of Arkansas
• Decided: November 15, 1885
• Status: Published

Opinion

OPINION.

Cockrill, C. J.

1. Statute of limitati ons on admini*trator's bond. The appellants rely upon the statute of limitations as a bar to the action. A cause of action did not accrue upon the bond until the administrator’s accounts were finally settled and an order made by the court directing him to pay the amount found due to the parties entitled to receive it. Fort v. Blagg, 38 Ark., 471 Baker v. State, 21 ib., 405; Padgett v. Coleman, 45 ib., 495.

The inference from the record is that such an order might have been procured by the administrator or the distributees as early as 1872, but a different course seems to have been thought advisable by all the parties, except the guardian of a minor heir of the deceased. He procured an order for the payment of his ward’s distributive share in 1873, but the order was never acted upon; the administrator did not seek to be discharged from his trust, and continued in its discharge, apparently for the purpose of collecting some notes due to the estate before making a final distribution. The order for payment to the guardian made in 1873, did not profess to be a general or final distribution. It was made upon the ex parte application of a single distributee, and does not purport to apply to any interest,other than the petitioner’s. It does not designate any particular part or pro rata of the assets to be delivered or paid to him, and whatever efficacy, if any, it may have had as to him, it is apparent it did not affect the rights of the other distributees. No action could have been maintained by them until October, 1882, when the administrator’s account was finally adjusted and an order for a general distribution made.

2. Jurisdiction by-citation. 3. Probate •court order •conclusive. It is argued that these orders are void for want of notice to the administrator, that they would be applied for. Aside from the fact that he appeared, by attorney, at every step in the proceeding, the court acquired jurisdiction of his person by the service of the citation and order of attachment. Pearce, ex parte, 44 Ark., 515. If he was entitled to credits for disbursements or payments made to distributees, he should have established the fact when his account was passed upon. He then had his day in court, and the opportunity of showing why an order for the distribution of the assets, or any part thereof, should not be made (Pearce ex parte, sup.), and having neglected to do so, the correctness of the orders cannot be questioned now. The adjudication by the probate court of the amount of his liability, is conclusive evidence against his sureties in this action. Jones v. State, 14 Ark., 170.

4. Who must sue for interest •of deceased heir. James Elms, one of the heirs at law of Garrett Elms, deceased, died before the institution of this suit, and his widow joined with her deceased husband’s co-heirs as plaintiff to recover his distributive share of the assets. The interest of the deceased minor heir is not specifically claimed by any one, though the appellees seem to lay common claim to it as his heirs at law. The court awarded them, including the widow of James Elms, the full penalty of the bond, thereby permitting them to recover the distributive shares going to the estate of James Elms and the deceased minor. That this was error has been frequently decided by this court. The administrators of the deceased heirs are alone entitled to recover for their interest. Purcelly v. Carter, 45 Ark., 299.

If we had a sure guide by which the interests of James Elms and the other deceased distributee could be eliminated from the judgment, we would affirm as to the other interests ; but the order of distribution made by the probate court merely directed the amount due to the estate to be paid in solido to the parties in interest, and we are unable to determine what amount should be adjudged to any individual. The judgment must therefore be reversed for the error indicated, and the case remanded with leave to the plaintiffs to bring in necessary parties.