Marshall v. John Deere Plow Co., 54 So. 948

Marshall v. John Deere Plow Co.

54 So. 948 | Miss. | 1911

Lead Opinion

Smith, J.,

delivered the opinion of the court-.

In order that the estates of decedents may be speedily settled, creditors thereof who fail to comply with the terms of section 2107 of the Code are barred from collecting claims against such an estate in a much shorter time than is prescribed for the collection of debts generally. Section 2103 of the Code provides the method of putting the period of limitations prescribed by section 2107 into operation, and it can. be put into operation in no other. The method provided is the giving .of certain information to creditors by means of a published or posted notice, which notice, among other things,- must advise “all persons having claims against the estate to have the same probated and registered by the clerk of the court granting letters, within one year,” and also ‘ that a failure to probate and register for one year will bar the claim.” This information is not contained in the notice now under consideration, and consequently the period of limitation prescribed by-section 2107 of-the Code was not thereby put into, operation.

One object of the notice is to call attention, of creditors, so far as this can be done by publication, specifically to the fact that in order that their claims may mot be barred, 'they must, within one year, have them probated and registered by the clerk of the court granting the letters' of administration. Were we to hold that the omis- sioH of this information from the notice now under con*291sideration did not avoid it, for the reason, as argued by counsel for appellant, that all persons are charged with knowledge of the law, and consequently are charged with knowledge of the provisions of section 2107 would logically result in a notice being held sufficient which simply stated the person publishing it had been appointed administrator of an estate, and advised all persons having claims against the estate to deal therewith as the law- directs. The statute is not so written, and we cannot so construe it. All that was decided in Stokes v. Lemon & Gale Co., 52 South. 457, to which we have been referred by counsel'for appellant, was that the use of the word “file,” instead of the word “register,” was a substantial compliance with the statute.

Other objections are raised to this notice; but, since the judgment of the court below must be affirmed by reason of the foregoing views, it becomes unnecessary for ns to notice these other objections. That appellee may have had actual notice of the death of the decedent, and of the appointment of appellant as his administrator, is immaterial. Affirmed.

Dissenting Opinion

Mayes, O. J.

(dissenting). I cannot agree that the notice to creditors published by the administrator in this case does not fully meet the requirements of section 2103, Code 1906. The notice is as follows: “Whereas, let-' ters of administration on the estate of J. T. Gibbs, deceased, were granted to the undersigned, on the 1st day of April, 1907, by the chancery court of Clay county, state of Mississippi. Now all persons having claims against the estate of said decedent are' hereby notified to probate the same within the time limited by law, or the same will be forever barred. ’ ’ The statute provides that the executor or administrator “publish in some newspaper in the county a notice requiring all persons having claims against the estate to have the same probated and registered by the clerk of the court granting *292letters, within one year, which notice shall state that a failure to probate and register for one year will bar the claim, and the time when the letters were granted; and the notice shall be published for three consecutive weeks, and proof of the publication shall be filed with the clerk. ’ ’

Comparing the statute with the notice, every substantial thing required by the statute to be set out in the notice is found there. All information which it is necessary that the creditors should have, in order that the purpose of the statute may be accomplished, is given in the published notice. I do not think it should be held by this court that a literal following of the statute is necessary. What is left out of the notice? The statute only requires two specific things to be stated. It requires that the administrator shall state the time when the letters were granted. The notice shows that this was done. The notice states letters were granted on April 1, 1907. The statute then requires that the notice shall state that a failure to probate and register for one year will bar the claim. The notice does state that all persons having claims against the estate are notified to probate same within the time allowed by law, or the claim will be barred. In my judgment, this was all that was necessary. The notice further states that the administration was granted by the chancery court of Clay county. It seems to me that every substantial thing which the statute required was set out in the notice, and the information intended by the statute to be conveyed to the creditors is as complete as if there had been a reproduction of the statute itself in the notice. Henderson v. Illsey, 11 Smedes & M. 9, 49 Am. Dec. 41; Borum v. Bell, 132 Ala. 85, 31 South. 454.