Buie v. Pollock , 2 Miss. Dec. 151 ( 1881 )

Opinion.

Campbell, J.:

The final settlement in the Probate Oourt by the Messrs. Buie, as executors, did not constitute a bar to the claim of the creditor, who has a judgment against them as such, that they should have applied the ample assets of the testator which were in their hands to the payment of such claim, and that for not doing so they were guilty of a devastavit. It is manifest that they had received to their own use from the estate largely more than enough to pay the judgment. Their first duty was to pay all claims established against the estate. They have no right to retain anything received by them as legatees or distributees as against the creditor of their testator. They are victims of an unfortunate combination of circumstances. Soon after they qualified as executors the statute in reference to the presentation of claims against the decedent was suspended. The estate was large and solvent. They made distribution speedily and a final settlement in 1865, all long before the expiration of the time given by law for the presentation of claims. Afterwards, and before the suspension of the statute of limitations had expired, suit was brought against the executors, which terminated in the judgment which is sought to be enforced in this suit. The creditor should not be made to lose because of anything occurring at a time when he was in no default for not asserting his demand. It has been adjudicated in Pollock v. Buie, executors, 43 Miss. 140, that the action was maintainable notwithstanding the final settlement of the executors, and that must be considered as finally settled in this suit.

The refunding bonds were not a bar to the proceeding by the creditor against tbe executors and sureties on their bond for a devastavit. These bonds were designed as a security for creditors thereafter proving claims, but in no manner affected the right of creditors to proceed for a devastavit. The judgment rendered by this court 1st February, 1875, and assailed in this case as void, was not .void. There was no want of jurisdiction of the parties or the subject matter. The parties were properly before the court, and the subject was the exercise of the appellate jurisdiction of this court in a case cognizable by it and properly before it. If it be admitted that the court improperly pronounced judgment on the first verdict because that was res adjudícala on the disposition of the case in the former writ of error, no more can be said of it than that it was erroneous thus to do. It does not go to the jurisdiction of the court, but to, the propriety of the action of the court, as matter of practice. ■ It is a question of error or not, and, if conceded to be erroneous, is not the subject of correction now, in this proceeding or any other. John M. Buie, administrator of the estate of Daniel Buie, • deceased, who was a surety on the bond of the executors of Neil Buie, deceased, was not freed from liability to be sued as such administrator by his final settlement as held in Pollock, admr., v. Buie et al., 43 Miss. 140, which we are not now disposed to disturb. He cannot justly complain of the application of the rule in this case, for he knew of the liability of his intestate, as a surety on the bond of the executors of Neil Buie, deceased, and of the suit of Pollock against those executors, before he made his final settlement, which he now pleads as a bar to this suit against him as administrator.

We have carefully considered this case in every view presented by counsel, or which has occurred to us, and can find no error in the record, and the decree is

Affirmed.