Persons v. Griffin

73 So. 624 | Miss. | 1916

Stevens, J.,

delivered the opinion of the court.

Appellant, as temporary administrator of the estate of M. Nolan, deceased, filed exceptions to the allowance of a claim which appellee attempted to probate against said estate in the sum of seventy dollars and five cents. One of the objections to the claim as probated is based upon the failure of Mr. Griffin, the creditor, to make affidavit to his account as required by statute; the affidavit having been made by one of J. A. De Monbrun as agent. The chancellor, upon hearing the contest, overruled the objections interposed by the administrator, and allowed all the items of the account except an item of fifteen dollars, shown to have been barred' by the statute of limitations. Prom the decree allowing this claim, appellant prosecutes this appeal. We shall discuss only the one ground of objection indicated.

The exceptions to the account as probated should have been sustained. There is no escape from this conclusion, unless we overrule previous decisions of this court. It is absolutely necessary for the creditor himself to make the affidavit provided by section 2106 of the present Code. An affidavit executed by an agent is insufficient and amounts to no affidavit at all. This is the express holding of our court in Saunders v. Stephenson, 17 So. 783, and prior announcements of our court there referred to by our Judge Fletcher, especially the case of McWhorter v. Donald, 39 Miss. 779, 80 Am. Dec. 97. Since the decision in the McWhorter-Donald Case was announced, the statute has been reenacted, with the interpretation placed upon it by our court, and the principle thus announced and applied becomes firmly established as a part of the legislative policy protecting the estate of decedents.

Counsel for appellee refer to tlae account as a just claim, submitted in good faith by a -creditor who had no personal knowledge of the dates and amounts of the items embraced in the account, and refer to the objections as “frivolous technicalities.” This argument may sound well-, but does not settle .the lega.1 difficulties. The court has no right to- assume the justice or correctness of any claim offered against the estate of a decedent, until the proposd claim has been duly probated in the manner provided by law. This law was made for the just as well as the unjust, and the courts are without power to inquire into the equity or good faith of any account or claim whose probate is insufficient. The voice of the deceased debtor cannot be heard in explanation of any item attempted to be probated against Ms «estate. The assets attempted to be charged with debts now belong to the innocent and inexperienced wife and children, and so.it is that the individual creditor who propounds his claim must fashion his probate according to the pattern drawn by our lawmakers. '"While the record in the instant case shows that Mr. Griffin proceeded in the utmost good faith, it yet remains that the probate of his claim is legally insufficient. It follows that the decree of the learned chancellor must be reversed, and a decree entered here in favor of appellant sustaining the exceptions filed to the account and disallowing the entire claim. v

Reversed and decree here for appellant.

Reversed,