Stevens v. D. R. Dunlap Mercantile Co.

67 So. 160 | Miss. | 1914

Eeed, J.,

delivered the opinion of the court.

Appellant, administrator with the will annexed of the estate of J. B. Stevens, filed his petition in the chancery court, averring that the claim of appellee -against the estate of deceased had not been probated in the manner required by law, and that the presentation of the claim to him as administrator is not ■sufficient in law to authorize him to pay it out of the funds of the estate. He prayed that the claim be dis•allowed. The chancellor sustained a demurrer filed by appellee and dismissed the petition, and appellant Thereupon prosecuted his appeal to this court.

It is contended that the notice to the creditors, published by appellant, is insufficient in form. The following is the notice:

“Administrators’ Notice to Creditors.

“ Letters of administration having been granted on the 21st day of May, 1910, by the chancery court of George county, Miss., to the undersigned upon the estate of J. B. Stevens, deceased, of Evanston, Miss., notice is hereby given to all persons having claims ■against s’aid estate to present the same to the clerk of said court for probate and. registration according to law, within one year from this date, or they will be ■forever barred. This the 26th day of May, 1910.

“[Signed] J. C. Stevens,

‘£ Administrator. ’ ’

„ Appellee claims that the notice does not contain the ■statement that a failure to probate and register claims against the estate within one year would have the effect of barring them.

The statue (section 2103, Code of 1906) makes it the ■duty of an administrator to publish in a newspaper a notice requiring all persons holding claims against the ■estate to have the same probated and registered by the clerk within one year. Such notice should 'state that a failure to probate and register for .one year will bar the claim. The time when the letters are granted must also be stated, and the notice should be published for three consecutive weeks; proof of publication thereof to be filed with the clerk. The notice in this administration shows the date when the letters were granted, and tells the creditors of the estate to have their claims, probated and registered by the ’ clerk within one year and plainly conveys the information that the failure to do so probate and register claims will bar them. This, is the simple reading of the notice, and certainly the requirements of the statute have been met.

Appellant relies upon the decision of the court in the case of Marshall v. John Deere Plow Co., 99 Miss., 284, 54 So. 948, to sustain his position. We find the notice-in that case is unlike the notice in the case at bar in that it fails to state that claims must be probated and registered according to law within one year, but uses, the following words to convey, information relative to-the requirement:

“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.”

It will be noted that in the present case creditors were given notice to present their claims to be probated and registered according to law within one year, and in the Marshall Case they were notified to probate their claims within the time limited by law, without stating, as required by the statute, that this time was one year.

It is further contended that the - administrator’s-notice to creditors was not published for a sufficient, length of time. The statute requires the notice to be published for three consecutive weeks. The proof of publication shows that the notice was published in three weekly issues of a county paper on the dates June 3,, .June 10, and June 17, 1919. This is sufficient publication of the notice. Section 1607 of the Code of 1906,. which provides the rule governing publications in newspapers when a number of weeks is prescribed, reads as follows:

“When publication shall be required' to he made in some newspaper ‘for three weeks,’ it shall’be sufficient to publish once each week for three weeks, even though there be not three weeks between the first and last publication; but there must.be three weeks between the first publication and the day for the appearance of the party or other thing for which, the publication shall be made; and this rule shall furnish a guide for any similar case, whether the time required be more' or .less than three weeks. ”

It is claimed that the will of John B. Stevens, deceased, created an express trust for the payment of the-debts, rendering it unnecessary to have" claims against h’is estate probated and registered as required by law. We quote the. parts of the will which appellee argues create the express trust:

The first paragraph in the will reads:

“It is my will and I do hereby direct that all my funeral expenses and just debts shall be paid by executor hereinafter named, as soon after my decease as may be found convenient out of any moneys it may receive as such executor..”

In the sixth paragraph the testator appointed the Central Trust Company of Mobile as executor of the will, and directed that a certain amount should be paid it as compensation, and, continuing, said:

‘ ‘ The said executor shall have power, and it is hereby authorized, after the payment of all debts due by my estate to divide among the beneficiaries under this will any property which may be left on hand, giving to each beneficiary as nearly as may be property of equal value, and it may in its discretion, in making divisions under this will, sell a portion of the property for the purpose of equalizing the interests of the said beneficiaries, and said executor is hereby authorized and empowered to sell any of my real estate for the purpose of division or otherwise, without any order of court, and said sale or sales may be made by public auction or privately, and may make deeds, as sncli executor, to the purchasers at any of such sales; and may make deeds to any of the beneficiaries under this will to any property, real or personal, which said beneficiaries may receive-in a division of my said estate.”

This will does not create an express trust for the-payment of debts. The provisions in this will are sim-. ilar to those in the case of Packing Co. v. Miller’s Estate, 103 Miss. 435, 60 So. 574, and Cohn v. McClintock, 66 So. 217. In the opinions in those cases we have fully expressed our views on this subject, and we now refer-thereto for the reasons for our holding here.

Appellant maintains that the claim of appellee should b;e disallowed 'because there was a failure on the part of the clerk to enter an indorsement upon the claim-showing’ that it had been probated, allowed, and registered. The statute (section 2106, Code of 1906), after-providing that one who desires, to probate his claim against the estate of a deceased person shall present it.' to the clerk and make affidavit thereto, then continues as follows:

“Thereupon, if the clerk shall approve, he shall indorse upon the claim the words following: ‘Probated and allowed for $ — —, and registered this-day of' -, A. D. -’ —and shall sign his name officially' thereto. Probate, registration; and allowance shall be-sufficient presentation of the claim to the executor or-administrator.”

In tbe case at bar the clerk did not make any entry whatever upon the claim showing that it had been probated, allowed, and registered^ In the book in the office of the chancery clerk, containing the record of the claims registered against the estate of deceased persons, there is an entry showing that the claim of appellee was registered.

The requirements of the statue (section 2116) was held to be mandatory in the case of Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414. After the presentation by tbe creditor of bis claim, supported by tbe necessary affidavit, it is before tbe clerk for his approval, and, if be' approves it, be is required to indorse tbereon words showing the probation, allowance, and registration and to sign bis name thereto. The administrator is not permitted to pay a claim unless it has been probated, allowed, and registered. Section 2105 of tbe Code of 1906, after providing that tbe administrator shall speedily pay the debts due by tbe estate, etc., continues:

“But be shall not pay any claim against tbe deceased unless the same has been probated, allowed, and registered.”

Such -probate, allowance, and registration is an Official act of tbe clerk, and it is shown by bis indorsement upon the claim itself; such indorsement being tbe mandatory requirement of tbe statute. Tbe entry of tbe claim in the record of registration of claims will not avail to render it unnecessary for tbe clerk to approve tbe claim and enter bis indorsement tbereon, as required by law.

From time to time this court has held that tbe probate of claims has not been sufficient, but generally upon tbe ground of error in the affidavit required to be made. We are considering for tbe first time tbe exact point presented in this case; that is, whether a claim, without any indorsement whatever tbereon by tbe clerk showing that it was probated, allowed, and registered, is sufficient to constitute a valid claim against tbe estate and a legal voucher for tbe administrator in bis settlement.

In tbe case of Davis v. Blumenberg, 65 So. 503, we held that an indorsement on a claim in tbe following words:

“I have this day examined the annexed account, and hereby allow tbe same, for tbe sum of thirteen & 95/100.”

—was sufficient compliance with the statute. We quote from tbe opinion in that case as follows:

“The word ‘probate,’ in this connection, simply means that the account has, in the judgment of the clerk, been proven in the manner required by law, and the fact that he allowed and registered it evidences the fact that he ■decided that it had been so proven, so that his omission to so certify is immaterial. We do not mean to depart from the strict construction heretofore given this statute; but to hold the certificate here complained of invalid would be to sacrifice substance to form, in a case wherein it is manifest that the statute had in all respects been complied with by the persons presenting the claims to be probated, and that the clerk, before allowing them, had so determined.”

In the case at bar it is not manifest that the clerk approved the probate and then allowed the claim. The statute required that this should be shown by his indorsement on the claim. We hold that the failure of the clerk to make any indorsement whatever, showing the probate, registration and allowance of the claim, will render the claim invalid as a charge against the estate of the deceased person.

The chancellor should have overruled the demurrer.

Reversed and remanded.