Wingate v. Wooten

13 Miss. 245

Opinion

Mr. Justice Clayton

delivered the opinion of the court.

This was a proceeding in the probate court of Hancock county. Green J. Wooten, as a creditor of the estate of Jordan Morgan, deceased, filed a petition, alleging that David R. Win-gate, the administrator, was wasting the property of the estate, and that his bond was legally defective, and praying that the letters of administration might be revoked. The petition was sustained, the letters of administration were revoked, without affording the administrator any opportunity to give other security, and administration de bonis non granted to Asa Russ. From this decision a writ of error was sued to this court.

The statute provides that if administration be granted, without taking good security, or if the security taken shall after-wards become insufficient, it shall be lawful for the court to require the administrator to give other good and sufficient security, and in default thereof, the letters shall be revoked, and administration de bonis non granted. H. & H. 398, sec. 45.

In this case no opportunity was afforded the administrator, to give further security and perfect his bond. His letters were revoked absolutely, without condition, and the administration granted to another. This was not a compliance either with the letter or the spirit of the statute. For this error the judgment will be reversed, and the cause remanded.

It is not necessary now to determine the effect of the grant of the administration de bonis non. The record does not show whether there was a change of possession of the property, or whether it still remains in the hands of the first administrator. There was an order for such change, and if it were made, it is possible some further difficulties may grow out of it, but we cannot now decide upon such supposed case.

Judgment reversed and cause remanded.