Nagle v. Ball, 71 Miss. 330

Nagle v. Ball

71 Miss. 330 | Miss. | 1893

Woods, J.,

delivered the opinion of the court.

We fail to discover the fraud supposed by counsel for appellant to have been practiced by A. H. Ball, administrator, on complainants, in inducing them not to probate their claims until barred by §§ 2026, 2028, code of 1880. In a single instance only, in all the letters filed in the record, is there any reference to the propriety or necessity of probating any claim against any person. In the letter of September 1, 1890, from A. H. Ball to James Ohlen & Sons that solitary reference is found, and in these words: “ It will not be necessary for you to probate any account against John T. Ball & Co., as I, as the surviving partner, have a right to settle any thing against the firm.” It is manifest that this was an expression of opinion by a surviving partner as to his power *335to liquidate the firm debt, without the necessity of the same being probated in order to his so doing. But if the letters were of the character which counsel suppose, their rights would not in any manner be affected thereby. The opinions of the administrator are of no value when opposed to an express rule of law. The administrator cannot waive the absolute bar created by statute for the protection of estates of decedents. He cannot abrogate a positive rule of law requiring probate of claims within the prescribed period by conduct of his own, however misleading or designing. The creditors were bound to obey the plain requirements of the statute. They, as all others, were supposed to know the law prescribed for their guidance. But if they did not, and the administrator advised or induced them to omit to probate their claims (though he did not in the case at bar), where is the authority to be found for exempting them from the operation of a positive statute which is universal in its application ?

The prayer of the petitioners for a sale of the lands belonging to the estate of Jno. T. Ball, deceased, was properly denied by the decree of the court below sustaining the demurrer to this part of the petition. This contention must be regarded as being now definitely settled in this state. This very question was determined in the case of Ales v. Plant, 61 Miss., 259, which counsel ask us to overrule. The request is not to be complied with. The rule announced in that case has been accepted and acted upon for ten years, and, during that period, a revision of our code of laws has been made, and the sections of the code of 1880 interpreted in the case referred to have been bodily brought forward into the later code, without change or modification. We are bound to suppose that they were brought forward unaltered in the later code with the full knowledge of the legislature that they had received the construction placed upon them in Ales v. Plant. The door to further controversy on this subject is now closed. The belated creditors cannot have sale of' the lands of the estate of the decedent.

*336The idea advanced by counsel as to the non-necessity for the probate of a claim against the estate of a decedent because of its being for a debt due by a firm of which the deceased was a member, has the charm of novelty, at least. "We do not see, however, why an individual creditor must probate his claim and a firm creditor need not. In the former ease, the claim is barred unless probated in twelve months ; in the latter case, the claim is not barred, though not probated. The distinction is purely arbitrary and imaginary. The case of Corson v. Benson, 86 Cal., 433, gives no countenance to this contention. The counsel misconceives the issues involved, in that case, and the decision of the court upon them. Said the court: “, The claim of A. Benson & Son was not a claim against the estate of O’Brien, but against the firm of which he had been a member, and, consequently, did not come within the purview of that section ” — one requiring presentation of claims on contracts against estates of deceased persons within a specified time. And again : “As there was no claim made against the estate of the deceased partner, the executors of his will were not necessary parties to the cross-action, and the same end could have been attained by proceeding against the two surviving partners alone.” Plainly, the court means that, as the claim was against the firm of which the deceased was a member, and not against his estate, there was no necessity for requiring presentation of the demand to the personal representatives of the deceased.

The contention of appellant’s counsel as to liability on the part of Bobinson and Harris, the sureties on the administrator’s bond, cannot be seriously considered. That the administrator was guilty of a breach of the conditions of his bond in that he wrote misleading and designing letters to creditors, whereby they were beguiled into a sense of false security, and that his sureties are thus made amenable to the penalties •of a breach of the bond, is utterly rrnsound. It is purely fanciful.

*337The petition, as a bill to cancel a conveyance in trust from A. H. Ball to his wife, alleged to be fraudulent, and praying subjection of the lands conveyed thereby to complainants’ ■demands, was retained by the chancellor, and properly. This was the extent of the right of the complainants to invoke the aid of a court of equity, and this right the learned court preserved to complainants. In every respect, the decree of the court below is approved by us.

Affirmed.