Brooks v. Spann

Citations

• 63 Miss. 198

Syllabus

<p>1. Bill in Chancery. Amendment of. Anticipation of defense.</p> <p>S., a legatee in her deceased father’s will, exhibited a bill against the residuary legatees and devisees therein to fix a charge for the payment of her legacy on the property received by the defendants from the testator’s estate. The defendants pleaded res adjudicata. S., on leave obtained, amended her bill so that it now set out not only her right to the legacy, but also that the suit in which the decree so pleaded was rendered was instituted and prosecuted without her consent, knowledge, or procurement. The executors of the will were parties to the decree assailed, but not to the present suit. It was shown that the estate had been fully administered, and all of it received by the defendants. The defendants demurred to the bill on the ground that the amendment set up a different case from that presented in the bill, and sought different relief. Held, that the amendment simply anticipated the defense and met it, and therefore the ground of demurrer was untenable.</p> <p>2. Limitation op Actions. Right to legacy. Mamed woman. Petition to cmnul decree.</p> <p>Under the Code of 1880 the right of a married woman or any other person to have annulled a decree in a suit apparently brought by her to recover a legacy is by analogy to a right of appeal or a bill of review, and to the right to surcharge and falsify the accounts of executors, administrators, and guardians, under $$ 2680, 2681, and 2075, limited to two years, and cannot be extended by the fact that a hill seeking such annulment also seeks to recover the legacy, the right to which, but for the decree against her, might he asserted at any time within six years.</p> <p>8. Decree. Rill to annul. Excuse for delay in filing.</p> <p>Where a bill to annul a decree is exhibited more than two years after the rendition of the same, it must set out a valid excuse for the delay in instituting the suit, as that the complainant had no knowledge of the exist