
    Samuel R. Patton et al. v. Sarah E. Pinkston et al.
    1. Wills. Bequest. Swlt by legatees. Equity. Jurisdiction.
    
    Legatees may sue in equity and recover upon a cause of action specifically bequeathed to them, if there be no executor of the will and the estate of the testator owe no debts, and the right will not be denied:
    (a) Because of the possibility that the funeral expenses of the testator and the costs of probating his will are unpaid; nor
    (5) Because one of the legatees refused to join as a complainant in the suit, and consequently was made a defendant thereto.
    '2. Same. Constructive trust. Code 1892, ? 2763.' Statute of limitation.
    
    A defendant who, having received money from a testator in his lifetime to invest for his benefit, invested it in lands for defendant’s own benefit, without the testator’s knowledge, holds the lands as a constructive trustee for the legatees to whom the right was bequeathed, and a suit to enforce the trust will not be barred until the ten years’ statute of limitations applicable to trusts, Code 1892, § 2763, shall have fully run.
    Ebom tbe chancery court of, first district, Panola county.
    UoN. JuliaN C. WilsoN, Chancellor.
    
      Mrs. Pinkston and others, the appellées, were complainants, and Patton and others, the appellants, defendants in the court below. Prom a decree in complainants’ favor the defendants appealed to the supreme court. The facts are stated in the opinion of the court.
    
      Shands & Shands, for appellants.
    As á general rule, an executor or administrator is always necessary to take charge of, collect, and disburse the personal assets of a decedent. Marshall v. King, 24 Miss., 85 ; Browning v. Watlcins, 10 Smed. & M., 485; Hickox v. Frank, 102 Ill., 660.
    It will be presumed in every case that an administrator is-necessary' unless facts are shown making an exception to the general rule. Ansley v. Baker, 65 Aim. Dec., 136.
    Where the heirs or legatees attempt to proceed without an administration, the burden of proof is upon them to- show that there is no necessity for an administration. Bowen v. Stewart, 128 Ind., 501. .
    Where there is a debt due the estate by a third person, or a third person who has property of the estate in his hands which he refuses to turn over, an administrator is necessary Oros-well on Executors and Administrators, 13; Duggee v. Taylor, 60 Ala., 504; Baird v. Brooks, 21 N. W., 163.
    Where there are creditors of the estate,'an administration is necessary. 11 Am. & Eng. Ency. Law (2d ed.), 742, sec. 3, and cases in note.
    True, complainants allege that “Emmons owed no debts at the time of his death,” but there is no allegation that his estate owes no debts; and, as appears from the will, made a part of the bill, he expressly makes his funeral expenses a debt and a charge upon his estate, and there is no allegation that these have been paid or that there were none. And then it appears from the bill that the will was probated, and the court will judicially notice that there were costs, which were charges upon the estate incident to the probate, and there is no allegation that these costs have, been paid by any one. The bill then proceeds to state that there is no necessity for an administration, this, of course, being a conclusion of law, not a fact well pleaded, and therefore not admitted by our demurrer. In the very next breath complainants proceed to show that they cannot sue for and recover this amount, for they allege that all of the property of the said decedent is specifically disposed of by his will, leaving no fund out of which to pay debts, except by cutting down the specific legacies — if the legacies, in fact, be specific. Complainants’ allegation should have been that the estate owed no debts.
    But not only is an administration necessary where the estate owes debts, but also-where there is a debt due the estate for which a suit has to be brought (see authorities cited above) ; and the fact that this suit is brought at all is conclusive against complainants on this ground.
    Complainants’ right to sue for and recover this money, if they ever had any, became barred by the statute of limitations before the institution of this suit. .
    
      L. F. Rainwater, and W. E. Boothe, for appellees.
    As a general rule, an executor or administrator is necessary where there are debts due from the testator or intestate, but when there are no debts owing by the testator or intestate; or when no necessity for an administration is shown, distributees or legatees may sue. Wood ei ux. v. Ford, 29 Miss., 51; Farris Heirs v. Graves, 4 Sméd. & M., 701; McRea v. Walker, 4 How., 455 ; Rath v. Griffin3 26 Miss., 579; Archer v. Jones, 26 Miss., 583; Hill v. Boyland, 40 Miss., 642; Ricks v. Hilliard, 45 Miss., 359; Stauffer v. B. & A. Mort. Go., 77 Miss., 127; Traweek v. Kelly, 60 Miss., 656.
    In the two last-cited cases the court announces the rule as well settled that when the intestate owes no debts and there is therefore no necessity for an administration, the distributees may sue in equity to recovery debts due tbe intestate. If a distributee may maintain a suit in equity to recover debts due. tbe intestate, as clearly announced in tbe cases cited, supra, then it must necessarily follow that a legatee may also maintain a suit in equity to recover a debt due to bis testator, especially when that debt is specifically bequeathed to tbe party suing. If there be any difference in tbe application of tbe rule, tbe advantage would bfe with tbe latter.
    Neither tbe three nor tbe six years’ statute has any application to this controversy. This is a ease of an express trust, and therefore is barred only after ten years from tbe time tbe right of action accrued. Code 1892, § 2763.
    Argued orally by A. W. Shands, for appellants.
   Cox, J.,

delivered tbe opinion of tbe court.

Mrs. Sarah E. Pinkston and Samuel W. Emmons, complainants below and appellees here, in their bill against Samuel R. Patton and Julia A. Patton and W. A. Gage & Co., who are appellants here, allege that complainants and said Julia A. Patton, being tbe wife of said Samuel R. Patton, are tbe children and only heirs at law and distributees of Eranklin Em-mons, deceased, who died in 1904; that said Eranklin Emmons left a last will and testament, which has been duly probated, naming one J. B. Boothe as executor, who has failed and refused to qualify, and that no letters testamentary or of administration have been applied for or issued; that at tbe time of bis death tbe said Eranklin Emmons owed no debts and bad no debts due him, as far as complainants can ascertain, except as set .out in said bill, and no necessity exists for any administration, all of bis. property having been specifically devised; that some time in 1895 tbe said Eranklin Emmons turned over to said Samuel R. Patton, husband of bis said daughter, Julia A. Patton, with whom be then resided and with whom be continued to reside until bis death, in 1904, certain moneys described in said bill, with the understanding and agreement that the said Samuel R. Patton should lend or invest said moneys for the benefit and in the name of said Franklin Em-mons, and that the income, or so much thereof as might be necessary for that purpose, should be used in paying the living expenses of said Eranklin Emmons; that said Samuel R. Pat-, ton, instead of investing said money in the name and for the benefit of said Franklin Emmons, as he agreed to do, intermingled the same with his own funds and those of his wife, and invested them in his own name and that of his wife, all of which was unknown to Franklin Emmons until some time in 1898; that said Samuel R. Patton failed and refused to render any account of the manner in which he invested said money to Franklin Emmons, and refused to render any account thereof to complainants. Certain lands are described in the bill, in which it is charged that said Samuel R. Patton invested a portion of the money of said Franklin Emmons, as above set out, taking title as to part to his wife, the said Julia A1. Patton, and as to part to himself. As to a certain lot, of which title was taken to his wife, it is charged that he executed a trust deed in favor of defendants, W. A. Gage & Co., his wife not joining in the trust deed. The bill further alleges that by his last will and testament, which is made an exhibit to the bill, the said Franklin Emmons specially devised and bequeathed to complainants and their sister — the defendant, Julia A. Patton — the principal and interest of the fund so held in trust by said Samuel R. Patton in equal parts, and directed that the same be collected from him. The will itself recites that “it is my will that my expenses for board and clothing for the term of years that I have been living in the home of said S. R. P'atton be first paid to him out of the proceeds of said crops of cotton (ten bales) and out of the principal and interest of the amount in his hands, and that the remainder of said sum of money be recovered and divided equally between my three children — Julia, Sallie, and Samuel. The bill prays that an. account be taken and stated as to tbe amount due complainants from tbe said Samuel ft. Patton, and as to expenses due said Patton on account of tbe said Franklin Emmons; tbat a decree be rendered for tbe sum so found to be due, and tbat tbe same be declared a lien upon tbe real estate described in tbe bill, and tbat tbe same be sold to pay whatever sum may be found due. Tbe bill concludes with a prayer for general relief. Defendants demurred, and tbeir demurrer was overruled, from wbicb action tbey bave appealed to tbis court.

Tbe first ground of demurrer urged is tbat complainants bave not made out any title to tbe relief sought, but tbat tbe suit should bave been instituted by an administrator cum testa-mento annexo. We do not think there is any merit in tbis contention. The bill shows that no letters bave been issued and tbat there are no debts. Tbis court has held repeatedly tbat in such a case administration is not necessary, but tbat tbe distributees may sue in equity in tbeir own names to recover a debt due tbe intestate. If tbis may be done by tbe dis-tributees of an intestate, by parity of reason it may also be done by legatees to whom a specific debt or demand has been given. Nor will tbis right be defeated by tbe possibility that tbe funeral expenses and cost of probate of will are outstanding charges against tbe estate. Even if these charges are yet due by tbe estate, tbe creditors would not be injured by giving complainants tbe relief sought in tbeir bill. As was aptly said in Ricks v. Hilliard, 45 Miss., 363, 364: “A recovery by them does not cut off creditors or put them in a worse predicament than tbey were before.”

We do not concur in tbe contention of appellants’ counsel tbat tbe bill should not be entertained because one of tbe legatees to whom Franklin Emmons bequeathed tbe demand sought to be enforced in tbe suit, Mrs. Julia A. Patton, is not a complainant, but appears as a party defendant to tbe suit. We fail to see what difference tbis can make. Tbe bill is rich in equity. The right to tbe relief sought is clear. All tbe parties in interest are before tbe court. It is too refined and tecbnical to say tbat tbe court is without power to grant tbe proper relief because, notwitbstanding all tbe parties in interest are before tbe court, tbey do not all appear on tbe same side of the case. In Wood v. Ford, 29 Miss., 57, a similar case, tbe jurisdiction of tlie court was sustained on demurrer, although one of the dis-tributees was a defendant against whom complainant prayed relief; and in Rabb v. Griffin, 26 Miss., 579, there was a like condition, with like result. Tbe jurisdiction of tbe equity courts are as full now as when these cases were tried, and their powers are ample to do complete justice between cordistributees or co-legatees in a case where one may deny the right or resist tbe demands of tbe others.'

There is no merit in appellants’ contention tbat complainants’ suit is barred by tbe six-year period of limitation. Tbe case made by tbe bill shows a constructive trust in favor of the legatees of Franklin Emmons in tbe land described in tbe bill, and is subject to tbe ten-year period of limitation prescribed by Code 1892, § 2763.

Affirmed and remanded, with leave to answer within sixty days from filing of mandate in court below.  