Witcher v. Wilson

47 Miss. 663

• Court: Mississippi Supreme Court
• Decided: April 15, 1873
• Status: Published

Opinion

Peyton, C. J.;

It appears from the record in this case, that W. P. Tindall and C. Brandon, on the 7th day of November, 1859, executed their joint and several promissory note for $230, payable to Josephine Wilson, or bearer, payable five months after date.

That the said Josephine Wilson, in the year 1868, brought suit in the circuit court of Lee county, on said note, against the said W. P. Tindall and James F. Witcher and Sarah A. Witcher, as executor and executrix of the last will and testament of C. Brandon, deceased.

To this action the said W. P. Tindall pleaded the general issue, non-asstmpsit. And the other defendants, James F. Witcher and Sarah A. Witcher, pleaded that they were not executors of C. Brandon, and the plaintiff replied that they were such executors, and to this replication the said James F. Witcher and Sarah A. Witcher demurred, and the demurrer was overruled by the court. Whereupon the case was submitted to a jury, who found for the plaintiff, and assessed her damages at the sum of $508. A motion for a new trial was made, and overruled by the court, and judgment rendered upon said verdict for the plaintiff, and from this judgment the said James F. and Sarah A. Witcher prosecute this writ of error.

Dick Brandon, a witness for the plaintiff, testified that Richard Brandon and C. Brandon were brothers, and were farming in partnership at the time of the death of C. Brandon; that nine bales of the partnership cotton were concealed in the woods for a time, and that James Witcher had four bales of this cotton taken to Memphis, which he there sold at forty cents a pound, and that those bales would average about five hundred pounds each; that Mr. Witcher married Mrs. Sarah A., the wife of C. Brandon. Said that Mrs. Sarah A. Witcher told witness that she had sold a fine horse that belonged to C. Brandon, deceased, for $175 in Confederate money, which was worth about $150 in good money. Witness thinks that after Mr. Witcher was married to the widow Brandon, he sold a mule for $60.

James F. Witcher testified on behalf of defendants, that three of the bales of cotton which he sold in Memphis were his own, and that the other bale was the partnership cotton of C. Brandon and R. Brandon; that he married the widow of said C. Brandon, who informed him that she sold one bale of cotton during the war to a blockade runner, but that she did not recollect what she got for it.

The demurrer to the replication to the plea of ne unques executors was properly overruled, and this threw the burden of proving the affirmative on the plaintiff, who must prove not only the appointment of the defendants, Witcher and wife, to that office, but that they have taken upon themselves the trust; and this may be by their proving the will, or taking the oaths and giving bond, or if they are charged as executors de son tort, by proving acts of intermeddling with the estate. The plaintiff should always take the precaution, where this plea is pleaded, to serve the defendants with notice to produce the letters testamentary, or letters of administration, at the trial, they being presumed to be in their possession, in order to lay a foundation for the introduction of secondary evidence.

It is apparent from the record, that James P. Witcher and Sarah A.,. his wife, were sued as executors de son tort. The husband would be liable only to the extent of the property of the deceased, taken and converted by him. But his wife would not be liable for the tortious acts of her husband in intermeddling with the assets of the deceased.

As there is some conflict in the testimony as to the extent of the property of the deceased, which has been taken and converted by defendant, James P. Witcher, which it is the province of the jury to determine, we would not feel inclined, from this cause alone, to disturb the verdict. But it is very certain that his wife cannot be made responsible for his tortious conversion of property of the deceased, whether before or after her intermarriage with him. Even if liable at all out of her separate estate, for goods of the deceased converted by her whilst she was sole and unmarried, her liability could not be extended beyond that, and therefore the judgment is wrong in requiring it to be levied of her separate estate.

The judgment is further impeached on the ground that it is not in the ordinary form against rightful executors. The judgment in this case is as follows: “ It is therefore considered by the court, that the plaintiff recover of the said defendant the said sum of five hundred and eight dollars, to be levied of the goods and chattels of C. Brandon, deceased, in the hands of defendants, James P. and Sarah A. Witcher, executors of said Brandon, to be administered, if to be had, and if not, then to be levied of the goods and chattels, lands and tenements, of the said defendants, and of the separate estate of the said Sarah A. Witcher, together with the .costs of this suit, to be taxed.”

We see no objection to this judgment on account of its being in the alternative, and it conforms to the law as laid down by Williams in such cases, that if the executor de son tort, being sued by a creditor, should plead ne unques executor, on which issue should be joined, and this issue, on proof of acts by the defendant, such as constitute in law an executorship de son tort, should be found against him, the judgment thereon would be, that the plaintiff do recover the debt and costs, to be levied out of the assets of the testator, if the defendant have so much, but if not, then out of the defendant’s own goods. 1 Williams on Executors, 233. We are disposed to adopt this doctrine.

The judgment being an entire thing, and erroneous as to Sarah A. Witcher, must be reversed as to all.

The judgment is reversed and the cause remanded.