Witcher v. Wilson

Citations

• 47 Miss. 663

Syllabus

<p>1. Pleading — practice.— Defendants, being sued as executors, pleaded that they were not such executors. Plaintiff replied that they were, and defendants demurred. Held, that the demurrer was properly overruled, and that this threw the burden upon the plaintiff of proving the affirmative of the declaration.</p> <p>2. Executors — burden of proof — practice.— He who brings a suit against parties whom he alleges to be executors, mnst prove, not only the appointment of defendants as such, but also that they have taken upon themselves the trust; and this may be done by proving that they have proved the will, or giving bond and taking the oath; or, in case they are charged as executors de son tort-, by proving acts of intermeddling with the estate. - - -</p> <p>8. Pleading — practice.—Where the plea, neimques executor, is interposed, the plaintiff should serve defendants with notice to produce their letters testamentary, in order to lay the foundation for the introduction of secondary evidence.</p> <p>4. Widow —liability for tortious act of her second husband intermeddling with assets of her first husband’s estate. — A woman is not liable, after a second marriage, for the tortious acts of her second husband intermeddling with the assets of her first husband’s estate, whether such acts be committed before or after the second marriage; but the second husband will be held liable to the extent of the assets so converted.</p> <p>5. Widow’s liability. — Semble: That the widow of a testator might, after a subsequent maTriage, be held liable out of her separate estate for assets converted by her during her widowhood; but if so, it could not be extended beyond that.</p> <p>Executor de son tort.— If an executor de son tort} being sued by a creditor, plead ne unques executor, and issue found against him, the judgment should be that plaintiff recover the fees and costs, to be levied of the assets of the testator, if the defendant have so much; but if not, of the defendant’s own go