Cheairs' Executors v. Cheairs' Administrators

81 Miss. 662

Opinion

Calhoon, J.,

delivered the opinion of the court.

The appellants filed their bill below for the sale of land to pay a debt they allege was owing from appellees’ intestate, E. E. Cheairs, to their testator, Calvin Cheairs. It needs only to be said, in stating the case, that on a demurrer to a cross-bill of appellees, which was overruled, we are called upon to decide on the validity of the probate of the claim, which is as follows:

“Dublin, Miss., Jan. 4th, 1892. $4,750.00. Twelve' months after date I promise to pay to the order of Calvin Cheairs, Sr., four thousand seven hundred and fifty dollars,' with interest at the rate of 10% per annum from date, for borrowed money.. Value received.'. Samuel D. Cheairs. No. — —l. Due-. ”

Sterling,’Colo.’, Mar. 26th, 18921

S. D. Cheairs, Dr., to Calvin Cheairs.

To N. Y. exchange five hundred dol............................ .$500 00

One dollar exchange......................................'...... l 00

$501 00..

Sent this day as above.

Dublin,.Miss^, Jan. 23rd,,1892..

Estate of S. D. Cheairs, to Calvin Cheairs, Sr.

One note given Jan. 4th, 1892................................. ’.$4,750 00

Interest on same to date......................................... 499 70

Cash' Jan. 4th, 1892..'..............:..................50 00

Cash Mar. 26th, 1892.................,..............................500 00

N. Y. exchange............................................... 1 00

Interest on same..............................1............... 41 70'

,$5,842 40

Cr.' by cash paid taxes in Coahoma county . "41 57

$5,800 83

Probate fee allowed 90

“State of Mississippi, second judicial district, Coahoma1 county. Personally appeared before me the undersigned clerk of the chancery court in and for said.county, Calvin- Cheairs, Sr., who, being first duly sworn, states on oath that the annexéd account and note against S. D. Cheairs, deceased, in his lifetime, for the sum of five thousand eight hundred and eighty-1 three one-hundreth dollars is just, true, and correct, and that no part of the money stated to be due, nor any security of satisfaction for the same, has been received, except . . ., credited thereon. Sworn to and subscribed before me this 25th day of January, A. D. 1893. Jas. A. Suddoth, Clerk, by L. C. Allen, Jr., D. C.” '

“The State of Mississippi, Coahoma county. Chancery court. I have this day examined the annexed account and note, total for $5,800.83, and hereby allow .the same, with interest from maturity at the rate of six per cent. Given under my hand and seal of. said court this 25th day of January, A. D. 1893. Jas. A. Suddoth, Chancery Clerk. L. C. Allen, Jr., D. C. [Seal.]

“Registered the 25th day of January, A. D. 1893, in Register Book of Claims, p. 1. Jas. A. Suddoth, Clerk. L. C..Allen, Jr., D. C.”

This probate fails to conform to the requirements of code of 1892, § 1932, in the following particulars: The affidavit does not, after the word “correct,” incorporate the words “and owing from the deceased;” nor does it contain the words “ that it is not usurious, ”. nor the words ‘ ‘ and that neither the affiant nor any other person has received payment.” • The statute provides that, affidavit made, ££ thereupon’ ’ the clerk shall indorse “ Probated, allowed and registered.”

Is mere “ registration and allowance ” by the clerk sufficient presentation to the administrator to stop the running of the one year and the general statute of limitations ? Is § 1932 mandatory ? Is the clerk’s action in allowing and registering judicial, and, if so, did the affidavit give him jurisdiction? Under code of 1857, p. 443, art. 82, which is the same with code of 1880, § 2027, our predecessors, in 1861, held, in McWhorter v. Donald, 39 Miss., 779 (80 Am. Dec., 97), that the probate was void, and no voucher to the administrator, where the affidavit, though stating that the claim was “ just and true,” failed to state that £ £ no part of the money stated to be due, nor any security or satisfaction for the same, has been received. ’ ’ If this decision be sound, the probate now before us, under the law as it now is, must be the more certainly void. In 1891, in Allen v. Hillman, 69 Miss., 225 (13 So., 871), in a case where the affidavit was that ‘ ‘ the within account is true and correct, and no part has been paid,” the court held the registration good to stop the running of the statute of limitations, although code of 1880, §2027, required the affidavit to state that “the account as stated is just and true, and that no part of the money stated to be due, or any security or satisfaction for the same, has been received.” The decisions earlier than that of McWhorter v. Donald, supra, and some since, regard probate as designed only to justify the executor or administrator in paying the claim as thus, prima facie, valid, and hold that presentation to him, or his knowledge of it, within the time limited, is enough, without any probate, to save the creditor’s right to sue. George’s Dig., 297-299; Perry v. West's adm’r, 40 Miss., 233. It.must be noted that in and since the act establishing the “orphans’ court” (Laws of 1821, p. 66, sec. 90), in every code up to that of 1892, appear these words: “ No executor, administrator, or collector shall discharge any claim against the deceased (otherwise than at his own risk), unless the same be first passed by the . . . court granting the administration, or unless the said claim be proved according to the following rules;” and then follows the probate requirement, affidavit, etc. (Hutch. code, p. 664; code 1857, p. 443; code 1871, § 1137; code 1880, § 2027), except that the codes cited leave out the words ‘ ‘ unless the same be passed by the court granting the administration, ’ ’ and say instead, £ £ unless the claim be proved according to the following rules. Code 1892, § 1931, however, in speaking of the payment of debts by the executor or administrator, leaves out the words ‘£ otherwise than at his own risk,” and provides this, “But he shall not pay any claim against the deceased unless the same shall have been probated, allowed, and registered. ’ ’ So the legislature, which is presumed to act in the light of all the decisions of the highest court of the state, has substituted for the single word ‘ ‘ approved’ ’ the words ‘ ‘ probated, allowed, and registered. ’ ’ This is, of course, quite significant of itself. But there must be added to this feature of the change divers others. Code of 1880, §2027, concludes as follows: “And such-registration shall be a sufficient presentation of the claim to the executor, administrator, or collector,” while code of 1892, §1932, has this.: “Probate, registration, and allowance shall be sufficient presentation of the claim to the executor or administrator.” Code of 1880, § 2028, provides that all claims shall be “registered, ’ ’ etc., within one year,, etc., ‘ ‘ otherwise the same shall be. barred;” while code of 1892, §1932, substitutes for. “ registered,” the words “registered, probated, and allowed.” Code of 1880, §2030, provides that the executor-or administrator be not allowed for his own claim against the deceased, “unless the same be registered” as other claims, while code of 1892, § 1935, says “unless the same be probated and registered” as other claims. Code of 1880, §2062, provides that “the presentation of a claim and having it registered, as required by law, shall stop the running of the general statute of limitations,” etc.; while code of 1892, § 1936 substitutes for the word ‘ ‘ registered’ ’ the words ‘ ‘ probated and registered. ’ ’ Up to this point, in .view of the previous decisions and previous statutes, it would seem plain that the legislature, in the code of 1892, designed to require, as an indispensable jurisdictional prerequisite to the allowance and registration, the making of the oath of probate in substantial compliance with § 1932 of that code. This leaves appellants in dependence solely on § 1895, corresponding to § 2047, code of 1880, both providing that any creditor whose claim is ‘ ‘ registered’ ’ may file a petition “ as the executor or administrator may” to sell land or personalty to pay debts. The trouble is that the executor or administrator could not file such a petition to pay any debts not “probated, allowed, and registered,” because § 1931 abso lutely forbids him to pay such, and, besides, in view of all the statutes in pari materia, it should mean such debts as are properly registered. Any other view disturbs the harmony of the statutes on the subject as a whole, and makes meaningless some of them. The probate in this case does not substantially conform to the requirements of the statute, and did not invest the clerk with jurisdiction to allow and register it. Its registration was, therefore, not a sufficient presentation to the administrator to stop the running of the statute of limitations,. We hold §1932 to be mandatory, that the affidavit must be “in effect” what it prescribes. Both accounts and written evidences of debt must be accompanied by the substance of the prescribed affidavit. In the case before us the claim may be usurious for aught we know. No one can say from its face that it is not, and the affidavit should show that it is not. We do not now say whether the other omissions mentioned at the outset are fatal or not.

.Affirmed, and remcmded, with sixty. days to appellants to cmswerr cross-bill.