SUPREME COURT OF MISSISSIPPI.
Cases Decided Monday, March 13.
PREPARED FOR THE CLARION BY FRANK JOHNSTON, Esq.
W. S. Taylor vs. R. Tate, Survivor,
No. 1773
Opinion of the Court by TARBELL, J.
Defendant in error, creditor of T. J. Phillips, deceased, obtained judgment for $90.25, against Taylor as executor de son tort.
Phillips, in his life-time, gave Taylor a mortgage on a growing crop to secure a debt. Phillips died before the crop was gathered. Taylor to secure his debt, took possession of the crop, applied it to his debt, leaving a surplus in his hands of about $70. Held:
I. Where there is a rightful executor or where the property of the deceased is taken under a claim of right, or with the bona fide intention of preserving the goods, a person cannot be charged as executor de son tort.
II. Taylor having a lien had a prior right to a prior payment, and was only liable to the creditors of the estate for the balance remaining in his hands after satisfaction of his mortgage.
III. The judgment for this balance should not be against him generally, but to be levied of the goods and chattels of the deceased remaining in his hands to be administered.
Reversed and Remanded.
Source: The Daily Clarion, Jackson, Mississippi, Wednesday, March 15, 1876; Pg. 2, Column 5
