Greenville Lumber Co., Inc. v. Hammett


<- Return to Search Results


Docket Number: 2003-CA-00343-SCT
Linked Case(s): 2003-CA-00343-SCT

Supreme Court: Opinion Link
Opinion Date: 10-21-2004
Opinion Author: Cobb, P.J.
Holding: Affirmed

Additional Case Information: Topic: Wills & estates - Executor de son tort claim - Section 91-7-249
Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Dickinson and Randolph, JJ.
Non Participating Judge(s): Diaz and Graves, JJ.
Procedural History: Dismissal
Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES

Trial Court: Date of Trial Judgment: 10-15-2002
Appealed from: Washington County Circuit Court
Judge: Richard Smith
Disposition: Dismissed the creditor's claim.
Case Number: CI-20-0284

  Party Name: Attorney Name:  
Appellant: Greenville Lumber Company, Inc.




STEPHEN NICK



 

Appellee: Annette F. Hammett FRITZIE LOUISE TONEY ROSS JOEL J. HENDERSON  

Synopsis provided by:

If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals
hand downs please contact Tammy Upton in the MLI Press office.

Topic: Wills & estates - Executor de son tort claim - Section 91-7-249

Summary of the Facts: Greenville Lumber Company, Inc. established an open account for Vernon Hammett, so that he could charge building supplies. When Hammett failed to pay for the materials, the lumber company obtained a default judgment against him. Before the judgment was satisfied, Hammett died testate, survived by his widow, Annette Hammett, and two adult children. The will was not filed for probate, and because Annette Hammett chose not to open the insolvent estate, Greenville Lumber filed a complaint demanding judgment against her, individually, in the amount of $21,868.43, plus accrued interest, attorney fees, and court costs. The suit was dismissed on the motion of Annette Hammett, and Greenville Lumber appeals.

Summary of Opinion Analysis: Greenville Lumber argues that the court erred by dismissing its “executor de son tort” or “executor in her own wrong” claim against Annette to recover Vernon’s debt. Section 91-7-249 provides that if any person alienates or embezzles any of the goods, chattels, personal property, or money of a person deceased, before taking out letters testamentary or of administration, such person shall be liable to the action of creditors and other persons aggrieved, as being executor in his own wrong. Greenville Lumber does not allege that Annette transferred or conveyed the money nor that Annette fraudulently or intentionally converted the money. At most, this is a case of Annette merely refusing or wilfully neglecting, for the space of forty days after the death of the testator, to exhibit the will and testament for probate. Mississippi “executor de son tort” or “executor in his own wrong” cases reveal that a defendant must deliberately alienate or embezzle rather than merely refuse or wilfully neglect to exhibit the will and testament for probate to be liable under section 91-7-249. Therefore, the court did not err when it dismissed Greenville Lumber’s action.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court