69 Miss. 225 | Miss. | 1891
delivered the opinion of the court.
The demurrer to the petition was properly overruled, for the petitioner had “procured his claim against the estate to be registered,” within the meaning of § 2047 of the code, which has regard to the fact of registration rather than the sufficiency of the proof of the claim to„ justify a voluntary payment of it by the personal representative of the estate.
Conceding the propositions contended for by the learned counsel for the appellant, Hillman, as to the character of the account, as being a “ mutual aud open current account” within § 2671 of the code, and that the statute of limitations began to run against it at the date of the last item credited to Mrs. •Banks, which was November 17, 1883, it follows that all of the account accrued three years and six months before the registering of the claim, which stopped the running of the statute (Code, §2062), was barred, unless the death of Mrs. B. in September, 1885, interrupted the running of time against the claim, or unless the claim was saved by a new promise or acknowledgment. It is settled that death, after the statute of limitation commences to run on a cause of action does not stop it, and time continues to be counted notwithstanding the lapse of an interval of greater or less duration, after the death and before the appointment of a personal representative of the decedent. Abbott v. McElroy, 10 Smed. & M., 100; Byrd v. Byrd, 28 Miss., 144.
Section 2683 of the code provides for the contingency of death duriug the last year of the time required to bar a claim, and, in that case, adds a period equal to the portion of the last year expired before the death. It is admitted by Hill-man’s counsel not to be applicable here. The death of Mrs. Banks did not interrupt the running of timé against the claim of Hillman, and the bar was complete in three years; and this period expired before letters of administration were granted.
The “register of claims” provided for by §1822 of the code, is intended to show all claims proved and allowed against any estate, so that the administrator or executor, distributees or legatees, or heirs or devisees, creditors, and the court, in fact all concerned, may have opportunity to know what claims are made against the estate. In order to secure this exhibit, “ all claims against the estate of a deceased person, whether due or not, shall be registered,” etc., or be barred. Code, § 2028. As it is made'compulsory to present and have registered all claims, under penalty of loss, if this be not done, presentation and registration of a claim is made to stop the running of the general statute of limitations, and also gives the claimant the right to apply to the court, as provided by § 2047 of the code. As said above, it is the fact of presentation of the claim and having it registei’ed, to which the statutes refer in- § 2047 and § 2062. The clerk “ may allow and register claims” (Code, § 1814), and it will not do to hold that the allowance and registering a claim go for nothing because of some want of conformity in the proof of the claim to the requirement of the statute. Whether the proof ,of the claim be sufficient to make it a voucher to the personal representative or not, if the claim is allowed and registered, the object of the statutes as to registration and its effect is accomplished.
The only remaining question is, do the letters of Mrs. Banks in evidence take the case out of the operation-of the statute ©f limitations? This question, must be answered in
While the letters show an acknowledgment of indebtedness by the writer to Hillman, they were not written to serve as an acknowledgment or promise of a debt in order to prevent the bar of the statute, and are not- sufficiently precise and definite as to debt and amount to have that effect under the established rule.
Only so much of the account of Hillman as bears date within three years and six months prior to the date of registering the claim is recoverable upon this record, and for that he is entitled to a decree. . '
Reversed, and decree here. The costs of the appeal will be taxed against Hillman, and the costs of the court below against the other parties.
