Foster v. Schaffer, 84 Miss. 197

Foster v. Schaffer

84 Miss. 197 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

The probated claim of appellant should have been allowed for the amount found, by the auditors to be due thereon. Sec. 1932, Code 1892, provides that “any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, or, if the claim shall be a judgment or decree, a duly certified copy thereof, or, if there be no written evidence thereof, an itemized account, or a statement of the claim in writing signed by the creditor,” and make affidavit, to be attached thereto, in the form therein set out. No point is made as to the form of the affidavit which was made by appellant and attached to his claim, hence the case of Cheairs’ Ex’rs v. Cheairs’ Adm’rs, 81 Miss., 662; 33 South, 414, which deals with that question solely, is not applicable. Appellant *200did present, as required by law, “a statement of the claim in writing,” and this was a substantial compliance with the provisions of the section quoted. The claim was not based upon an itemized account, but was for a certain sum for professional services rendered to the decedent, and a written statement thereof was duly presented, sworn to, and registered. This was a notification to the administrator and all concerned that this claim was made against the estate, and furnished an opportunity to have the claim contested under sec. 193d of the code, whereupon it devolved upon the claimant to establish his claim by competent evidence. Allen v. Hillman, 69 Miss., 230; 13 South., 871; North v. Lowe, 63 Miss., 31. Having sustained his claim by proper and satisfactory proof, he was entitled to have it allowed. The construction which the chancellor placed upon sec. 1932 was too narrow, and absolutely nullified that clause which permits claims to be probated on filing a “statement of the claim in writing,” and yet a large class of debts falls within this category.

Reversed and remanded.