The bill shows that the complainant, Ann H. Webster, is the daughter and one of the heirs-at-law of Robert Howard, deceased; that said Howard died seized and possessed of a large real and personal estate, and left a will devising his estate to his widow Sarah and her three children; that in the distribution of the estate the land levied upon was assigned to her as a portion of the real estate of her deceased father; that she was in possession of it at the time of filing her bill. It is further alleged that the said Sarah was appointed executrix of the estate of her husband, by his last will, etc., and that she qualified and gave bond, and took possession of the entire estate; that she died in 1862, and that J. M. Stigler, the sheriff of Holmes county, administered upon her estate, and rendered a final account of her administration of the estate of Robert Howard, deceased, at the August term, 1867, of the said Probate Court, showing a balance unadministered or unaccounted for by said executrix of $9,443.21 for money, cotton, and other effects received by her.
It is further alleged that the personal estate of Robert Howard, deceased, was more than sufficient to pay the debts of the estate, aside from that which has been distributed to the heirs-at-law, or that may now be on hand; and that whatever insufficiency of assets there may be to pay the debts of the estate is in consequence of a devastavit, as shown by the final account of J. M. Stigler as administrator of Sarah Howard, the executrix of her deceased husband's estate.
It appears further from the record that said J. M. Stigler, sheriff, was appointed by said Probate Court administrator de bonis non of the estate of Robert Howard, and that during his administration of said estate the judgments were obtained against him, upon which the executions of ft fa. were issued and levied upon the land in question.
An injunction was issued, stopping the sale of the said tract of land.
A demurrer was filed to the bill of plaintiffs in error, assigning various grounds; the demurrer was sustained, and the bill dismissed.
To reverse this decree the plaintiffs in error prosecute this writ of error.
The action of the court below in sustaining the demurrer of defendants in error is made the only ground for error in this court, which is, that "the court erred in sustaining the demurrer to the said bill, because the lands of plaintiffs in error are not chargeable with the debts of their ancestor, and cannot be subjected to payment thereof until the personal estate is exhausted."
"The protection of lands and tenements and hereditaments from sale, for payment of debts of decedents, until the personal estate is exhausted, will protect a leasehold estate in lands until the final disposition of the personal estate."
It is insisted in behalf of the plaintiffs in error that the lands levied upon, under the executions issued upon the judgments obtained against J. M. Stigler, the administrator de bonis non of the estate of Robert Howard, in favor of defendants in error, are not subject to sale, because there was a much larger amount of personal estate left by Robert Howard than was sufficient to pay all his debts, which passed into the hands of his executrix, Sarah Howard, and that before they can subject the land in question to sale under their judgments they must pursue the sureties on the official bond of Sarah Howard, as executrix upon said estate.
This position of counsel would be tenable if the lands in question were not a leasehold estate; as by the demurrer it is admitted that there was at the time of the death of Robert Howard three times as much personal estate as was sufficient to pay all the debts of the estate, and that a large amount of this property has been wasted by the executrix, Sarah Howard, deceased.
This court has held, that when personal assets largely in excess of the amount of the claims against an estate had passed into the hands of an administrator, and had never been administered or accounted for, the lands of a decedent would not be decreed to be sold to pay his debts unless the creditor had exhausted all remedy in due legal form against the administrator and his sureties. Paine v. Pendleton et al., 32 Miss. Rep. p. 320; Evans v. Fisher, 40 Miss.
It is admitted in the argument of counsel, and shown by the. record, that the interest of plaintiffs in error in the land in ques-tioned is only a leasehold interest.
Any estate less than a freehold, such as estates for years, are chattel interests, and if they continue for a longer period than the life of the tenant, they go to his personal representatives, his executors or administrators, I Prest. on Est., p. 203; 1 Wash. on Real Prop., p. 60.
This court has adjudicated upon the precise question involved in the case under consideration - the interest vested in lessees of sixteenth sections in this State, where the lease is for ninety-nine years, as was the case of the lease to the ancestor of the plaintiff in error, Mrs. Ann H. Webster - holding that such leases are of no higher dignity than a lease or term for one year, and that the leased premises go into the hands of the administrator or executor of the lessee, to be administered as any other chattel and not to the heir. Dillingham v. Jenkins, 7 S. & M. Rep. p. 479.
In many of the States of the Union, by statute, these leasehold estates for ninety-nine years are made descendible to the heirs of the lessees. It is to be regretted that there is not a similar statute in this State, as many of the homes of widowed families are upon such estates.
We shall adhere to the doctrine laid down in the foregoing authorities, and affirm the decision of the chancellor sustaining the demurrer, and dismissing the bill of plaintiffs in error.
The only remedy for the plaintiffs in error is to pursue the estate of the defaulting executrix and the sureties upon her official bond for the loss they will have to sustain by the sale of the leasehold estate in question.