63 So. 233 | Miss. | 1913
delivered the opinion of the court.
Mrs. Dora Howell, executrix of the estate of T. S. Howell, deceased, filed her petition in the chancery court of
We think that the action of the chancellor was correct in sustaining the demurrer, as the debt claimed was not a claim against the estate. This court has held in a number of cases that: “Ordinarily, debts contracted by executors and administrators are obligatory only as personal obligations, and cannot primarily bind the estates committed to them, except in cases specially authorized by statute. This has been repeatedly held true of attorney’s fees due for professional services in the management of estates.” See Clopton v. Gholson, 53 Miss. 466; Norton v. Phelps, 54 Miss. 467; Hines v. Potts, 56 Miss. 346; Parham v. Stith, 56 Miss. 465; Stern v. Hampton, 73 Miss. 555, 19 South. 300.
This court has also decided that a party to a special contract cannot recover on a special contract, because he had not performed it, nor upon the quantum meruit, because of the existence of the special contract. Timberlake v. Thayer, 71 Miss. 279, 14 South. 446, 24 L. R. A. 231.
But it is insisted that Judge Howell was prevented by death from performing his contract to wind up the estate, and for this reason the administratrix should be directed to pay him the value of his services performed before his death. We think, under this court’s former decisions, this position is not maintainable. While an act of God will excuse the performance of a duty created by law, it will not excuse a duty created by contract. Harmon v. Fleming, 25 Miss. 135; Mitchell v. Hancock County, 91 Miss. 414, 45 South. 571, 15 L. R. A. (N. S.)
Affirmed.
ON SUGGESTION OE EBEOE.
This case was decided at a former day of this term and affirmed, the court giving two reasons for affirmance, to wit: First, the debt sued on was not the debt of the estate of decedent; second, the debt sought to be recovered was based on an entire contract, and petitioner could not recover on the contract, because he had not performed it, nor upon the quantum meruit, because of the existence of the contract.
The latter reason is sharply challenged by the suggestion of error on file. In the original briefs filed in this case the numerous eases decided by the American courts differentiating this case from the cases heretofore decided by this court, and followed in the present case, were not cited by counsel. Inasmuch as the affirmance must stand on the first ground, without committing the court to a different view than the one heretofore expressed on the second ground, wet have decided to withdraw all part of the opinion referring to the entire contract feature of the case.