Fitzpatrick v. Beal

Citations

• 62 Miss. 244

Syllabus

<p>1. Guardian and Ward.. Sale of land'und'er % 2113, Code of 1880. No summons to relatives.</p> <p>Section 2113 of the Code- of 1880,. which authorizes the chancery court to order the sale of a ward’s land upon, the-petition of the guardian setting forth the reasons why a sale would be beneficial to the ward, requires that “ a summons shall issue for at least three of the near relatives of the minor, if there be any in the State.” A decree of sale under this statute rendered without the issuance of a summons to any relatives of the minor or any good showing for the non-issuance therefor is absolutely void. Temples. Howard, 52 Miss. 360, cited.</p> <p>2. Same. Sale of land. Section 2114, Code 1880, constmed.</p> <p>Section 2114 of the Code of 1880, which provides for the sale of a ward’s share or interest in land descended or devised to “heirs or devisees jointly, one or more of whom are minors,, and an equal division thereof cannot be made,” doesnot apply where a guardian seeks to sell a two-fourths undivided interest of his two wards inherited in lands, the other interests in which belong to persons not their co-heirs. This section only applies where a ward holds land as heir or devisee 'jointly with other heirs or devisees, and a separation of his interest from theirs is sought; in which case the co-heirs or devisees must he summoned.</p> <p>3. Same Sale of land. Section 2109, Code 1880, construed.</p> <p>Where, under $ 2109 of the Code of 1880, a guardian applies for the sale of his ward’s land because of the insufficiency of the personal estate and the rents and profits of the real estate to maintain and educate him, or because it is deemed preferable that the real estate be sold instead of the personal estate for that purpose, the court may act upon such application without the previous issuance of a summons.</p>