Claiborne County MsArchives Court.....Smith, Samuel 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Smith, Appellant, v. Moore.

pages 40-42

Where there is no husband or wife, the next of kin is entitled to the 
administration of the estate of the deceased, unless under twenty—one years of 
age, of unsound mind, incapable, according to law, of making a contract, or a 
convict of some crime rendering him infamous.

A judge cannot give judgment upon his private knowledge, but must render it 
according to law and evidence.

Where the judge of probate refused administration of an estate to the next of 
kin, on the ground of mania a potu, as a fact within the knowledge of the 
court: Held, to be irregular. The judge must be sworn as a witness as to facts 
within his own knowledge.


APPEAL from the probate court of Clairborne county.

Maury and Thorp, for the appellant.

Mr. Justice TROTTER delivered the opinion of the court.

This is an apppeal from the probate court of Clairborne county.

The record states that, at a regular term of said court, held on the 22d day 
of October, 1838, before N. M’Dougall, Esq., the judge thereof, the appellant 
made an application for letters of administration, to be granted to him of the 
estate of his deceased brother, Samuel Smith. It shows that he was brother of 
the deceased, and also that he was next of kin, and entitled to distribution 
under the statute of this state.

By the 54th section of the orphans' court law, Rev. Code, p. 43, it is enacted 
amongst other things, that "such court shall grant letters of administration 
to the representatives who apply for the same, preferring first the husband or 
wife, and then such others as are next entitled to distribution," &c. 

The deceased had no wife or children, and the appellant was therefore clearly 
entitled to the administration of his estate, unless he was disalifiqued 
according to the provisions of the 60th section of the orphans' court law, by 
being either "under twenty-one years of age, of unsound mind, incapable, 
according to law, of making a contract, or convict of some crime rendering him 
infamous.

The 61st section of the same law provides, that no question respecting age or 
infamy shall be determined by the court without summoning the person entitled 
to administration, and alleged to be under age or infamous, &c.; when the 
person is in court, and his right is objected to on either of the grounds 
before mentioned, it is made the duty of the court to decide such questions in 
the same manner that it does any other which may arise before it, that is, by 
the evidence adduced in support of the allegations and against them. In this 
case, the court refused the admininistration to the appellant, and granted it 
to a stranger.

Immediately following the judgment of the court, is a statement by the judge, 
of the reason of his decision.

They are in substance, that the appellant had been for some time prior to his 
application, laboring under mania a potu, and had continued in that condition 
until about four weeks before he then session of the court, and also that he 
was so intemperate in the opinion of the court, as to render him utterly 
incapable of transacting business.

That the deceased, a short time before his death, had stated to the judge, 
that he had made a will, and appointed James Moore (to whom administration was 
granted) to settle his business, and that the court was satisfied that Samuel 
Smith, the deceased, made a will, &c. 

The bill of exceptions which was taken to the opinion of the court, shows that 
no proof of any sort was introduced, and that the judge decided from his 
private knowledge and impressions made upon him by the representations of 
deceased. It also shows that this knowledge and these impressions, were 
confined to the breast of the court, until after its decision.

The error assigned is, the judgment of the court upon this statement of the 
case. The court in this instance appears to have acted with a commendable 
solicitude to prevent an injury to the estate of the deceased, and if the 
facts existed as stated, it was no demonstration of unkindness to Jesse Smith, 
or of hostility to his interests, to withhold from him a trust, the indiscreet 
or unskilful management of which, must necessarily diminish his fortune as 
well as that of the other distributees, if any. The question, however, which 
is presented for our consideration, is, whether the judge in this case, had 
that judicial knowledge of the facts stated by him which was necessary to 
attach to them any influence.

It is a settled maxim, that a judge has a private and a judicial knowledge. 
But he cannot give a judgment upon his private knowledge; for he is obliged to 
give it according to law and what is proved. If he has a private knowledge of 
a fact, he may be sworn as a witness, and then the parties have an opportunity 
to examine and cross-examine him, and to introduce explanatory or 
counteracting proof.

But how is this invaluable right to be preserved, if the judge keeps the facts 
locked up in his own breast until he decides?

A judge stands in this respect upon ground analogous to a juror who may happen 
to know any thing of the case submitted to him. In that case, he must be 
sworn, and if he finds a verdict, upon his mere private knowledge, it is 
error; and the verdict will be set aside. Starkie's Evidence, 449; 3 
Blackstone’s Com. 375.

We are of opinion, therefore, that there was no legal proof before the 
orphans' court of the appellant's disqualification, and that the decision of 
that court in this case, ought to be reversed. Let the judgment be reversed, 
and the cause be remanded for further proceedings.

Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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