73 So. 624 | Miss. | 1916
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.
Reversed and decree here for appellant.
Reversed,