McWhorter v. Donald

39 Miss. 779 | Miss. | 1861

Harris, J.,

delivered the opinion of the court:

The appellant filed her petition in the Probate Court of Leake county against the appellee as administrator of John Adams, deceased, for a final settlement of said estate. An account. was filed and excepted to; and the judgment of the court, overruling appellant’s exception, allowing the account as filed, and discharging the administrator, is the ground of error now assigned.

We shall only notice the grounds of exception which are well taken, and which should have been sustained.

The fourth ground of exception refers to voucher No. 8, which embraces a-number of accounts and items (against decedent) paid by John T. Donald in his lifetime. The only proof of these accounts appearing in the record is a statement of the amount of each and when paid, and the oath of the administrator that his account thus made out is just and true, and no part thereof has been paid or any security or satisfaction given for the same. It nowhere appears that these items or accounts were paid for by said Donald at the request of the said Adams, or that said Adams in any manner directly became the debtor of the said Donald, or recognized the validity of said debts against him, or the propriety of their payment for him by said Donald. The said Donald, therefore, by the payment of these accounts, only became the equitable transferee, and as against the estate of decedent is compelled to present each account itself, with every item, with the oath of the creditor, as required by the Code, indorsed thereon, with such proof as will satisfy the court that the account is just and true, and has not been secured or satisfied. To allow an assignee of an open account to pay the same, make a new account for money paid, and then by his own oath to probate his account as “just and true,” &c. — in the terms of the statute — would be to annul the statute requiring strict proof of accounts against the estates of decedents, and open a wide door to the grossest frauds.

Exception No. 5, to voucher No. 4, presents'the same question, and was also well taken.

Exception No. 6, to voucher No. 5, presents two questions: first, as to the form of probate; and, second, as to the validity of the claim under the proof in this record; and on both points the exception was well taken.

If the account was due to Mrs. Eliza M. Donald, the statute requires that she should probate it in the usual form, which is not done: she does not appear to have had any active agency in this transaction, and may be to this day wholly ignorant tbatsAe is made to charge her deceased mother and stepfather for services she voluntarily rendered them in their dying moments. For this very reason, among others, the statute requires the account itself, with the oath of the creditor indorsed thereon. It may be, and is even quite probable from her filial attention to her aged parents in their last moments, that no temptation could have seduced her to swear that this account of five hundred dollars against -the estate of John Adams is “just and true;” and if the claimant of the account as it appears in the record does not so swear, or will not so swear, the statute intends that outsiders shall hot volunteer to do it for her.

On the second question presented by this exception, it is clear from the proof in the cause that this claim is without the shadow of foundation. It neither rests on contract nor finds the least sanction in any code of morals. It is uneonscientious, and should not therefore be tolerated in a court of justice having power to reject it.

Exception No. 7, to voucher No. 6, and exception No. 9, to voucher No. 10, are both well taken:; the first for the reasons stated on the fourth exception, and the last because Zollikoffer does not show in his verification that no part of the money, stated to be due, nor any security or satisfaction for the same, has been received, &c., as required by the statute.

The refusal of the court to require the administrator to charge himself with the hire of certain negroes, stated in the proof to have belonged to or been in the possession of Adams in his lifetime, and used by Donald on his farm for several years before the death of Adams and even .after his death, was clearly error, as the case is presented by the proofs in this record.

Let the decree be reversed .and cause remanded for a final account and settlement and other proceedings in accordance with this opinion.