McGraw v. Robinson Mercantile Co.

49 So. 260, 95 Miss. 828

Opinion

Smith, J.,

delivered the opinion of the court.

In September, 1906, P. II. McGraw, appellant’s intestate, died, leaving a growing crop of cotton, which was taken possession of by P. L. McGraw, appellant, who was a son of the deceased, and by him gathered and delivered to the Eobinson Mercantile Company. At the time of the death of P. PL Mc-Graw he owed the Eobinson Mercantile Company an unsecured debt for supplies furnished him with which to make the crop. This account was not probated, and the time for so doing had expired at the time of the institution of this suit. After the death of P. PL McGraw1 the Eobinson Mercantile Company advanced money and supplies to P. L. McGraw in order to enable him to gather the crop. Some time after this cotton had been delivered to the Eobinson Mercantile Company, P. L. McGraw was appointed administrator of his father’s (P. PL McGraw’s) estate. In due course of the administration the estate was declared insolvent, and appellant, by order of the chancery court, instituted this suit to recover the value of the cotton. At the close of plaintiff’s testimony the court sustained a motion to exclude same, and instructed the jury to find for the defendant, and there was a verdict and judgment accordingly; hence this appeal.

Three reasons are given why the judgment of the lower court should be upheld: (1) Because the administrator of the estate, which has been declared insolvent, has no power to institute any proceedings to recover the possession of any assets of the estate until the decree of insolvency has been set aside and Hie administrator directed to proceed with the administration of the estate; (2) because this administrator is himself personally liable to the estate for the value of this very cotton, by reason of his having alienated same before taking out letters of administration; and (3) because the court erred in sustaining demurrer to defendant’s special pleas.

None of these grounds are tenable. It is the duty of an administrator, without an order of the chancery court, to collect all debts which were due the estate of his decedent, even though such an estate has been declared insolvent. Certainly such a court, having full jurisdiction of the matter, has the power to order him so to do-.

Under section 2100 of the Code of 1906, appellant may be personally liable to the estate for the value of the cotton; but this fact does not operate either as a release of the liability of the appellee, or as a disability on the part of the administrator to maintain this suit.

The demurrer's to the special pleas were properly sustained; but, even if this were not true, plaintiff would have been entitled to have replied thereto, and to a trial of the issue thereby joined.

The judgment is therefore reversed 'and cause remwiide.d.