Jefferson County MsArchives Court.....Bolls, Andrew June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

ANDREW BOLLS vs. JOHN H. DUNCAN.

As administrator of a deceased person, dying here without heirs, cannot by 
injunction restrain the escheator general from collecting the property of the 
deceased.

A creditor of the deceased person, must proceed against the escheator general.

OPINION OF THE COURT—By CHIEF JUSTICE HAMPTON

This cause is brought before us by appeal from a decree of the chancellor, 
given at the January term 1824 of the superior court of chancery for the 
Western district, dissolving injunction and dismissing the bill of the 
appellant, Andrew Bolls. It is a case of the first impression, arising under 
our own municipal laws, in the adjudication of which we are not to expect 
lights and precedents from abroad.

The bill of complainant, which was filed on the 12th of December 1823, states, 
that on or about the 4th of November 1822, a certain Adam Rum, of Jefferson 
county in this state, died intestate, without heirs entitled to inherit his 
estate either real or personal — that complainant being the largest creditor, 
on the 23d December 1822, obtained letters of administration on the estate of 
the said Adam Rum, gave bond and security, and took oath conformably to law. 
That said estate is indebited to complainant in a sum between nineteen 
hundred, and two thousand dollars, for money advanced for goods sold and 
delivered, for work and labor, and for other matters of account. That said 
estate, is much more than sufficient to pay all demands against it. That on 
the 30th of September 1823, John H. Duncan, escheator general for the state of 
Mississippi, filed in the office of the clerk of the supreme court of said 
state, a suggestion, that said Adam Rum died, seized and possessed of a 
considerable estate, both real and personal, and that the same had escheated 
to the said state of Mississippi. Whereupon the said clerk issued the process 
contemplated by the 2nd section of an act, passed by the legislature of the 
state, on the 13th day of June 1822, entitled "an act to reduce into one the 
several acts concerning escheats." In pursuance of which process, the sheriff 
of Jefferson county held an inquest according to the directions of said act, 
on the 24th of October in the same year, by which it was found, that the said 
Adam Rum, left no heir capable of inheriting his said estate. Whereupon the 
said clerk of the supreme court, issued process commanding said sheriff to 
take into possession the estate both real and personal of the said Adam Rum 
deceased, and deliver the same to the said escheator general. Bolls considers 
he has an equitable heir on said estate, as well for his own debt, as all 
others against it, he having become adminstrator thereof. Prayer for subpoena 
injunction and account, to be taken of the debts chargeable on said estate, 
and for satisfaction thereon. On the 11th December, 1823, the chancellor 
granted a fiat for an injunction, staying the proceedings from the supreme 
court, instituted at the instance of the escheator general and on the 12th day 
of the same month, the injunction issued, which was
duly served on the 15th.
	
The answer which was filed on the 13th, January, 1824, admits the statements 
contained in the bill as to death and intestacy of the said Adam Rum, his 
having a considerable estate and his having no person capable of inheriting 
the real, or receiving distribution of the personal property, and that the 
said complainant took out letters of administration, on the personal estate, 
but whether legally or not, submits to the court. Denies that the said Adam 
Rum died considerably indebted to other persons as stated in the bill, but 
states the truth to be, that except the claim of said complainant, the said 
Adam Rum did not owe a sum exceeding 150 dollars, of which complainant by his 
own shewing has paid no part, altho he has had time and means to have done so. 
That said estate, would remain in the hands of defendant as Escheator general, 
subject to all legal and equitable claims against it, and that he is ready and 
willing to pay all just claims against said estate, which shall be legally 
preferred against it. Admits that, as his duty was, he did institute 
proceedings as stated in the bill to render such escheated propertt available 
to the state, and that by an inquest dated 24th of October, 1823, the estate 
of the said Adam Rum, both real and personal, was declared to be escheated in 
due form of law. Expressly denies that the estate of the said Adam Rum is 
indebted to complainant between 1900 and 2000 dollars, as charged in the said 
bill; and also denies that the said estate is indebted, to complainant any 
thing, upon a fair and just settlement of accounts; states that at the death 
of the said Adam Rum, he may have been indebted to complainant in some small 
sum, but this is not admitted, but proof required thereof, and alleges, that 
ever since the date of his administration, the said complainant has been in 
possession of the entire estate of the decedent, both real and personal, using 
and enjoying it, and that he has never accounted to this defendant or to any 
one else, for the rents issues and profits of said estate. That complainant 
made on the plantation last year seven bales of cotton not accounted for; has 
used the pork and stock of said estate for his own benefit, and never 
accounted for the same, and moreover, hath suffered the personal estate to be 
greatly impaired contrary to his duty as a faithful trustee, and that though 
twelve months and more had expired since he assumed the administration, he 
hath not yet caused his accounts to be settled by the court of probate, or 
even presented them for allowance, manifesting there by in all his conduct, a 
disposition to produce delays, and to defraud the said estate.

By appraisement and inventory, made an exhibit in complainants bill, it 
appears that the personal estate of the said Adam Rum, amounted to 6,772 
dollars, 42 cents, which amount is determined as its value, by the inquest, 
made an exhibit in the answer, which also returned that decedent died siezed 
of 5l0 acres of land in fee simple, yielding a clear yearly issue of 120 
dollars, and that the said personal estate is of the clear yearly value of 580 
dollars.

We have examined the statutes with great care and reflection, and find the 
case pregnant with difficulties, and shall not flatter ourselves that in the 
opiniJn we shall givè, it will be our good fortune to satisfy the mind of all 
parties. On the case made by bill and answer, the later swearing off the 
equity charged in the former, we are of opinion, that the decretal order of 
the honorable the superior court of chancery, so far as it directed a 
dissolution of the injunction, was correct, and should be affirmed by us if 
indeed the chancellor had jurisdiction, and so far as said order directed a 
dismissal of plaintiff’s bill, it must be vindicated, if at all, either on the 
ground of a want of jurisdiction, or of a construction of the several 
acts “pari materia” in regard to this subject, each of which grounds we will 
examine. Though, the proposition, that an inferior court, whose decisions are 
supervised and may be reversed by the supreme court, should nevertheless 
controll the proceedings of this higher court by its mandatory fiats, strikes 
the mind with some degree of novelty and inconsistency, yet when we consider 
of the organization of our judicial system, and the controlling powers of a 
court of chancery over proceedings at law, however sanctioned by the highest 
tribunals, we must admit the necessity, and in reference to the present 
system, the propriety of such interposition and controul. - Neither do we 
think there is any thing in the argument, which would distinguish original 
proceedings, on the law side, before the supreme court; and in the case at 
bar, such argument would go to elevate the doings of the ministerial officers 
of this court, in relation to escheats, (for the matter is chiefly conducted 
by them) above the solemn and deliberate adjudications of this court, upon 
full argument and consultation. We are therefor inclined to the opinion that 
the jurisdiction belongs to the chancery court to controul these proceedings 
at law, on equitable grounds, in the exercise of which power, if it errs, its 
acts are reversible by this court, not as a court of law, but as having the 
highest chancery supervising powers. So far from impeaching the legality of 
what has been done, a release of errors, either express, or implied, admits 
and sanctions the proceedings at law, which nevertheless, are superseded on 
account of reasons moving the conscience of the chancellor to the belief that 
the complainant is entitled to relief, which a court of law could not afford 
him. The act establishing the orphans court system, passed 26th of November, 
1821, which directs the mode of taking out administration on intestates 
estates, and descent and distribution thereof. The act establishing a literary 
fund, passed the same day, and the act to reduce into one the laws relating to 
escheats, passed on the 13th June, 1822. This reference to dates is made, in 
order to shew, that the provisions of the two first, were known to the 
legislature, at the time they passed the last, and that in case of conflict, 
the latter should prevail, according to the maxim adopted in regard to the 
construction of laws. "Leges, posteriores priores contrarias abrogant." They 
being however in some respects "pari materia"  are to be reconciled as far as 
practicable, and receive the most harmonious construction possible. It will be 
no infraction of this rule, to admit, if such be the fact, that the last act 
has made special provisions, excepting particular cases out of the general 
provisions contained in the first and second.

Under these various laws the true construction would seem to be, that the 
escheator general is entitled to the custody of all property real and personal 
of a deceased person dying here without heirs. The debts of the deceased are 
to be collected by process against the escheator general, by each creditor, 
and an administrator is not entitled to the custody of the property. This 
being the view of the law entertained by a majority of the court, the decree 
of the chancellor dissolving the injunction must be affirmed.

Judge Ellis concurred with Chief Justice Hampton. 

Judge Turner dissented.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 156.

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