Morris v. Virden

21 S.W. 223, 57 Ark. 232, 1893 Ark. LEXIS 66

• Court: Supreme Court of Arkansas
• Decided: February 4, 1893
• Status: Published

Opinion

Hemingway, J.

All persons entitled to share in the distribution of an estate should be parties to the proceeding for an order of distribution. If all do not join in the petition, such as do not should be notified of its pendency and thereby afforded an opportunity to contest the claims of the petitioners and establish their own rights. Mansf. Dig. sec. 151; 2 Woerner on Administration, sec. 561; Neal v. Robertson, 55 Ark. 79. If one of the distributees dies before an order of distribution is made, his personal representative is a necessary party, and no order can be properly made unless he is made such. 2 Woerner, Administration, sec. 561; McMullen v. Brazelton, 81 Ala. 442; Boyett v. Kerr, 7 Ala. 9, 15; Shriver v. State, 65 Md. 278, 282; Thomas v. People, 107 Ill. 517; Long v. Thompson, 60 Ill. 27; Smith v. Rice, 11 Mass. 507; Shores v. Hooper, 153 Mass. 232; Cason v. Cason, 31 Miss. 578; Conwill v. Conwill, 61 Miss. 202.

In this case, the petitioners admitted, and the court found, that one David V. Ross, who did not join in the petition and had no notice of it, was one of the distributees of the estate, and, if alive, was entitled to a share, which the court directed the administrator to hold for him. As he was entitled to a share if alive, his legal representative was entitled to it in case he was dead ; and in either case the one or the other should have had an opportunity to show what that share was. It may be that the petitioners properly disclosed their and his interest, and that his presence would not have changed the aspect of the case; but it may be, he could have shown that he was solely entitled to the distribution, or that he was entitled to a much larger interest than the petitioners disclosed. At any rate, the law guarantees him an opportunity to be heard, and exempts him from the operation of a judgment rendered where the opportunity was not afforded. The adjudication was not binding upon him if he is alive, or upon his representatives if he is dead, and would have afforded no protection to the administrator against any subsequent demand upon his part. . The administrator was interested in the making of an prder that would be binding upon all parties, and had a right to contest the making of one under which he could not defend ; it follows that he is entitled to demand the reversal of the one appealed from.

Whether the petition was properly filed , on part of the minor, Lulu Morse, we deem it unnecessary to determine, since she is now of age, and may join in its further prosecution or retire from it, as she may elect.

The judgment will be reversed, and the cause remanded, with directions to the circuit court to remand it to the probate court for further proceedings in accordance with this opinion.