Oliver v. Smith

49 So. 1, 94 Miss. 879

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinion

Fletcher, J.,

delivered the opinion of the court.

This suit was instituted by appellant in his capacity as creditor in order to collect a probated debt. It was shown that this creditor was the administrator and had filed his final account. Upon the hearing of this final account, the existence of unpaid probated claims seems to have been overlooked, and distribution was directed to be made among the heirs without first paying the debts of the estate. Creditors were not parties to this proceeding, and, of course, their right to payment cannot be affected by the decree directing distribution. As to such creditors the estate remains unadministered. Pollock v. Buie, 43 Miss. 140.

We do not think this rule is here'inapplicable because the creditor is himself the administrator. Certainly the final account and the petition for its allowance were filed by appellant in his representative capacity, and a decree directing distribution, in which the debts were inadvertently overlooked, cannot be held to be final and conclusive as to appellant in his capacity as creditor, especially where it is shown that there had been no adjudication by the court as to outstanding debts. In such a case his rights are the same as those of any other creditor.

That the statute of limitations docs not bar the claim of the administrator against the estate for an individual debt duly pro-' bated and not barred at the time of his appointment is well settled. Sims v. Sims, 30 Miss. 333.

The action of the chancery court in dismissing the bill was error. Reversed and remanded.