Silas Steen, Administrator, vs. Silas L. Steen et al., 25 Miss. 513

Mr. Justice Yerger delivered the opinion of the court. In the year 1837, Robert Steen departed this life, and letters of administration upon his estate were taken out at the February term, 1837, of the probate court for Rankin county, by William Steen. William Steen also died, and letters of administration upon his estate were granted by the same court to Silas Steen.

The appellees, who are distributees of the estate of Robert Steen, filed a petition in that court, at the August term, 1847, alleging that “ William Steen, as administrator, &c., was cited by the probate court of said county, to the April term, 1841, thereof, to make settlement of his administration of said estate, and afterwards, at the June term, 1841, without any notice to the petitioners, and without any notice by publication or advertisement, as required by law, of his intention to make settlement of said estate, or to file an account of final settlement of his administration thereon, at said June term, 1841, and wholly unknown to petitioners, though then citizens of Rankin county, and relations and neighbors of said administrator, the said William Steen presented a pretended account of his administration to said court,” which pretended account, it is averred, “ is wholly irregular, unjust, and fraudulent, and unsupported by any legal voucher, and was never examined, audited, or allowed, as required by law, and was and is, as a final settlement of the administration of said William Steen, wholly fraudulent and void.” The petition further prayed, that Silas Steen, administrator, &c. of William Steen, be cited before the court, “ to make a final settlement of the administration of his intestate, William Steen, upon the estate of said Robert Steen, deceased, according to law.” Silas L.

Steen, the administrator, &c. of William Steen, appeared and answered this petition,, stating that “William Steen did present an account of his administration to the probate court of Rankin county, which was intended for a final settlement of said estate, and the said account was by the court received and ordered to be recorded as a final settlement, but that he had no certain knowledge or information as to what notice was given previous to the presenting and receiving said account;” and he submits to the court, whether he shall make any further settlement of the administration of William Steen upon the estate of Robert Steen, deceased.

It appears from Exhibit E. to the petition, that at the June term, 1841, of the probate court of Rankin county, William Steen presented what purports to be “the account of William Steen, administrator, &c. of Robert Steen.” Upon this account is an entry or memorandum in these words: “ Received and ordered for record. W. D.

Hathorne, Clerk.” On this state of facts, an order was made by the probate court at the September term, 1847, “ that the prayer of the petition be granted; that the account fof final settlement of the estate of Robert Steen, deceased, filed- at the June term, 1841, of said court be rejected and disallowed; and that said Silas Steen, as administrator of said William Steen, deceased, be required to make final settlement, according to law, of the administration of his intestate, William Steen, on the estate of said Robert Steen.” In pursuance to this order, Silas Steen made a final settlement at the March term, 1848, showing a large balance against William Steen, as administrator of Robert Steen; and a final decree, allowing the same, was made.

From the final decree, so rendered, Silas Steen, administrator of William, has appealed to this court. The main questions, pressed in argument upon the court, were: First. Was the account presented by William Steen at the June term, 1841, examined and allowed as a final settlement of his accounts as administrator, and as such conclusive as the judgment of a court of competent jurisdiction against the claim of petitioners ? Second.

If not final and conclusive, can Silas Steen, as administrator of William Steen, be required by the probate court to render an account of William Steen’s administration on the estate of Robert Steen ? Upon the first point, it may be remarked, that we do not think the record shows that the account presented by William Steen in’June, 1841, ever was “examined and allowed” by the court; and it is not, therefore, in our opinion, any bar to the relief sought by the petitioners.

The only entry or memorandum whatever shown by the record in relation to this account, is an entry made upon the account itself in these words: “ Received and ordered -for record.” To this memorandum the signature of the clerk is attached; but it is entirely without’ date, was not entered upon the minutes of the court, and cannot, therefore, be regarded by us as the order or judgment of the court. In the case of Moore et ux. v. Carson, 1 How. R. 60, Ch. J.

Sharkey declares, that “ nothing can be a decree of the orphans’ court, unless it be made in term time, and duly entered as such on the records of the court.” The memorandum in this case is without date. It may or may not have been made in term time. How that fact is, the record does not show. It is not entered upon the minutes of the court, and may have been made by the clerk during vacation, without any order or judgment of the court in the premises.

We cannot, therefore, regard it at all in the light of an order or judgment of the court, and do not, therefore, consider it as evidence of a settlement or allowance of the account by the court.

But if the entry before us had been made in the same words on the minutes of the court, instead of being made upon the account of William Steen, we still would not consider it as an order or judgment of the court, allowing the account filed as the final settlement of the administrator. •* Among other provisions of the statute, in relation to the allowance of accounts by administrators, guardians, &e., one will be found in these words: “ And the court, on due proof of notice as aforesaid, and no objection being made to the account as stated, may decree an allowance thereof.” Hutch. Co. 682, § 12.

Now it is manifest, that a mere order, though entered upon the minutes of the court, that the account of an administrator be “ received and ordered for record,” is not an order or decree of “ allowance.” The account may have been received, and may have-been ordered to be recorded, and yet the judicial mind never have passed or decided upon the question of “ allowing or disallowing” it.

To hold, that an order that an account be “ received and recorded,” is equivalent to an order of “ allowance,” would affix a meaning to those words which they do not import, and which we do not think it would be proper to give them. The account may have been “examined and allowed” when it was “ received and ordered for record ; ” but the record contains no legal evidence of that fact; and a mere inference or presumption that it may have been so, is not sufficient, where the law has provided that the record itself must contain the evidence.

But again, if the record beforfe us had' contained an order of “allowance” in proper form entered upon the minutes of the court, we would be compelled to treat it as a nullity, because notice was not given, as required by law, to the parties to be affected by it. It has been repeatedly held by this court, that no judgment is valid or binding against a party, unless he had notice, either actual or constructive, of the proceeding'against him. Without such notice, the court giving the judgment had no jurisdiction of the person, and the judgment is, therefore, a nullity, for want of jurisdiction.

It is also a fixed rule on this,subject, that the record of the judgment must show upon its face that the court did have jurisdiction of the person. Unless it so appears, the judgment is a nullity; for it will not be presumed that the court had jurisdiction of the person, unless the record shows the fact. In this State, actual notice is not required to be given by an administrator to the parties interested, of the presentment of his final account for allowance.

The statute has prescribed the mode and manner in which notice shall be given ; and, as before stated, has declared, that the “ court, upon dpe proof of such notice, and no objection being made to the account as stated, may decree an allowance.” In the case of Moore et ux. v. Carson, before cited, the court held, that an order or judgment allowing the account of a guardian was void, because the record did not show that notice had been given, as required by law. The record was declared not to be evidence of a judgment in a collateral proceeding.

The statute on the subject of notice, and the allowance of the accounts of guardians, is the same as that relating to administrators. We cannot, therefore, in principle, distinguish the two cases from each other. It is certainly true, as contended by counsel, that the judgments of courts acting “in rem” are valid, without actual notice; and this upon the principle, that the seizure of the “thing” about which the court adjudicates, is constructive notice to all persons interested in it to appear and make known their claim. Public policy requires this rule in the .class of cases to which it has been applied.

But the probate court, in making a final settlement of a guardian’s or administrator’s accounts, does not proceed “in rem.” There is no “ thing ” which the court seizes and acts upon. The judgment or decree, when pronounced, is personal, and acts in personam, either charging or absolving the party from liability.

The judgment or order granting letters testamentary, or of administration, may be considered a proceeding “ in rem.” But in no just or proper sense, can the order or judgment of the court, settling and allowing the accounts, be treated as such a proceeding, any more than a bill in chancery for an account. We do not think, therefore, that there is any judgment or decree which bars the right of petitioners to call for an. account.

This brings us to the consideration of the second question: Can the administrator of William Steen be required by the probate court to make a settlement of William Steen’s accounts as administrator of Robert Steen ? In the lifetime of William Steen, the probate court had exclusive jurisdiction over the settlement of his accounts as administrator. But he died without having made such settlement.

In his lifetime, the distributees of Robert Steen’s estate could have required him to make a settlement and distribution of the estate, by application to the probate court, and they could not have required him to account in any other court. Has his death ousted-the jurisdiction of that court? In the case of Jones and Wife v. Walter Irvine’s Executors, it was held, that legatees and distributees could maintain no action upon the administration bond of a deceased administrator, until a final settlement had been made of his administration accounts. 1 Cushm. 361.

The counsel for the appellants admit the correctness of this decision, but say, that the administrator of the deceased administrator must be called upon to account in the chancery, and not in the probate court. We listened with pleasure to the able argument on this point, but we cannot subscribe to its validity. In the case of Jones & Wife v.

Irvine’s Executors, before referred to, although the question was not necessarily adjudicated, we expressed our opinion, that the probate court had jurisdiction to compel the administrator, as executor of a deceased executor or administrator, to settle the administration accounts of such deceased testator or intestate, in order that the distributees of the first estate might proceed, if necessary, upon the bond. A further examination of the question has strengthened the opinion then expressed.

This conclusion has been reached by us, after a full examination of the various cases cited by counsel upon either side; but in stating the result to which our minds have come, we have not deemed it necessary to refer to those cases, while we think the adjudged cases in other States and in the ecclesiastical courts in England, though hot entirely harmonious, would sustain the view we entertain. We prefer to rest our opinion upon what we believe to be the proper construction of the constitution of this State, and of the former adjudications of this court.

By the constitution of this State it is declared, that the probate court shall have “jurisdiction in all matters testamentary and of administration, in orphans’ business and the allotment of dower, in cases of idiotcy and lunacy, and -.of persons non compos mentis.” This court has repeatedly decided, that this clause in the constitution confers exclusive jurisdiction upon the probate court, in matters testamentary and of administration. 2 How. R. 856; 3 Ib. 252; 5 S. & M. 530. It has also held, that it has exclusive jurisdiction in the settlement of the accounts of administrators, guardians, &c. See same cases.

In the lifetime of William Steen it is beyond dispute, that under the constitution and laws of this State, the probate court had full, complete, and exclusive jurisdiction in the settlement of his accounts as administrator of Robert Steen. Plow has his death made any change in this particular ? Is the settlement of those accounts a matter of administration or not, and if so, by whom must they be settled ?

One thing is very clear according to former decisions, until there is a final settlement of the accounts of William Steen, no action can be maintained by the distributees to charge his sureties upon his administration bond. It is necessary, therefore, that this settlement should be made, and an account be rendered. By whom must this be done? It will not be pretended that it can be done by any other person than his administrator. In his lifetime it was the duty of William Steen to have rendered to the probate court a full and final account of his proceedings as administrator.

It was one of his duties as administrator, for the due performance of which he was personally bound. Having died without having performed this duty, his personal representative must necessarily perform it.

Now, as the examination and allowance of the accounts of an administrator is a jurisdiction which pertains exclusively to the probate court, before which the administrator in his lifetime could only be called upon to account, and as he died without having rendered an account, thereby making it the duty of his administrator to render it in his stead, we think reason and sound policy both indicate, that the representative should render it in the same tribunal before which, and which alone, the party whom he represents could have been required to appear in his lifetime.

We are unable to perceive any valid reason why the probate court should not entertain jurisdiction in a case of this ldnd. By the grant of letters of administration to William Steen, the probate court of Rankin county obtained jurisdiction over him as administrator, and over his proceedings as such, with the right and power to compel him to settle and account therein in relation to them.

Having thus obtained jurisdiction over his person and over the subject-matter, to wit, his administration of the estate of Robert Steen, including an account and settlement thereof, his death, in our opinion, does not oust the jurisdiction once obtained, but the jurisdiction properly .continues in that court, until there is a full account rendered and a final settlement made of his acts and dealings as administrator.

We are, therefore, of opinion, that the probate court had jurisdiction in the present case, and was fully empowered to require Silas Steen, as administrator of William Steen, to account in the matter of William Steen’s administration of the estate of Robert Steen. The decree, of the probate court will, therefore, be affirmed.