Estate of Wilson v. NATIONAL BK. OF COMMERCE

364 So. 2d 1117
CourtMississippi Supreme Court
DecidedNovember 22, 1978
Docket50723
StatusPublished
Cited by5 cases

This text of 364 So. 2d 1117 (Estate of Wilson v. NATIONAL BK. OF COMMERCE) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Wilson v. NATIONAL BK. OF COMMERCE, 364 So. 2d 1117 (Mich. 1978).

Opinion

364 So.2d 1117 (1978)

ESTATE OF Gaines P. WILSON, Sr., Deceased, Gaines Wilson, Jr.
v.
NATIONAL BANK OF COMMERCE of Mississippi and Scribner Equipment Company, Inc.

No. 50723.

Supreme Court of Mississippi.

November 22, 1978.

*1118 Fant, Crutcher, Moore & Spencer, L.G. Fant, Jr., Holly Springs, for appellant.

Burgin, Gholson, Hicks & Nichols, John W. Crowell, Columbus, for appellees.

Before PATTERSON, SUGG and BOWLING, JJ.

SUGG, Justice, for the Court:

This appeal is from a final decree of the Chancery Court of Oktibbeha County allowing five claims filed against the Estate of Gaines P. Wilson, Sr., a resident of Jefferson County, Kentucky, who died September 4, 1972.

His will was admitted to probate in Kentucky on September 25, 1972, and was admitted to probate in Oktibbeha County, Mississippi on January 23, 1973 because decedent owned real property in Oktibbeha County. A final decree closing the Oktibbeha County Probate was entered on February 13, 1974.

On March 18, 1975, the Oktibbeha County Chancery Court reopened the Estate of Gaines P. Wilson, Sr. Thereafter the National Bank of Commerce of Mississippi, the corporate successor to the First National Bank of Monroe County, Mississippi, probated a promissory note and Scribner Equipment Co., Inc., a Mississippi corporation, probated four promissory notes as claims against the estate.

*1119 Gaines P. Wilson, Jr., as legatee under the will of Gaines P. Wilson, Sr., filed a contest to each of the claims. After an evidentiary hearing the chancery court entered a final decree allowing the probated claims as follows:

1. National Bank of Commerce, $14,283.60 with interest at the rate of 7% per annum from November 30, 1976 until paid.
2. Scribner Equipment Co., $162,212.45 with interest at the rate of 7 1/2% per annum from November 30, 1976 until paid.
3. Scribner Equipment Co., Inc., $23,968.22 with interest at the rate of 7 1/2% per annum from November 30, 1976 until paid.
4. Scribner Equipment Co., $15,581.24 with interest at the rate of 7 1/2% per annum from November 30, 1976 until paid.
5. Scribner Equipment Co., Inc., $2,619.40 with interest at the rate of 7 1/2% per annum from November 30, 1976 until paid.

Appellant assigns eight errors. In the first five assignments of error appellant contends that the court erred in allowing the claim on each of the notes probated. In his sixth assignment of error appellant contends the court erred in overruling the objection of appellant to the introduction of one of the notes of Scribner. In his seventh assignment of error appellant contends that the court erred in holding that the original notes were not filed as required by statute. In the eighth assignment of error appellant contends that the court erred in holding the judgments of the Circuit Court of Jefferson County, Kentucky were not entitled to full faith and credit in Mississippi. In his brief appellant combined the eight assignments of error for argument as follows:

1. Probate of a promissory note against the estate of a deceased person requires the filing of the original note, unless it can be accounted for as lost.
2. The claims are too ambiguous to permit allowance.
3. The note to National Bank of Commerce had been paid in full.
4. The judgments of the Circuit Court of Kentucky are conclusive of the matters they determine.

We will discuss the assignments of error sequentially as presented in the brief of appellant.

I.

Were the notes probated as required by statute?

Section 91-7-149 Mississippi Code Annotated (1972) provides in part:

[A]nd if the claim be based upon a promissory note or other instrument purporting to have been executed by the decedent, the creditor shall file with his claim the original thereof to remain in the keeping of the clerk or, having so presented said original writing, he may withdraw the same when the clerk has made a certified copy thereof, the said copy to remain on file.

A certified copy of each promissory note was retained by the clerk and attached to the copy of each note the following affidavit appeared:

I, JAMES H. COOK, Chancery Clerk of Oktibbeha County, Mississippi, do hereby certify that this note is a true and correct copy of the original note which was presented to me on this date for probate as a claim against the estate of Gaines P. Wilson, deceased, being Cause No. 10,990.
I further certify that after having been filed and numbered, the original note was withdrawn by the holder and this copy substituted to show evidence of the indebtedness owing by said estate.

In Merchants and Manufacturers Bank v. Fox, 165 Miss. 833, 147 So. 789 (1933) we recognized that any claimant probating a promissory note may withdraw the original note by complying with the statute. In this case, we stated:

The bank desired to avail of the privilege of withdrawing the original notes and attempted to comply with the statute by leaving copies with the clerk, the originals having been exhibited and as the *1120 clerk now testifies the copies were by him compared with the original notes and found by him to be true, full and correct copies. But the clerk failed to attach his certificate to the copies that they were in fact true copies. There is indorsed on the face of each of the notes the word `copy,' but there is no certificate to that effect by the clerk. The statute in plain terms requires the clerk, when the originals are to be withdrawn, to make and retain certified copies thereof.
The statute does not prescribe the form of the certificate, but certainly there must be under the hand and seal of the clerk sufficient to make it known as a matter of record that the clerk has had the originals placed before him and that he, the clerk, not some one else, certifies that the copies which remain with the clerk are true and correct copies of the originals. This may be done by the clerk indorsing on the copy that the same is `a true copy of the original this date exhibited to me,' dating the certificate, signing the same, and affixing thereto his official seal. Other forms of the required certificate may be used, but whatever the form, it must show that the original note was presented to the clerk and that the copy retained by him is in truth and in fact upon the official certificate of the clerk, a true and full copy of the original. It follows, of course, that all indorsements and credits must be shown by the copy and certificate, as if the original were retained. (165 Miss. at 839, 147 So. at 790).

The certificate of the clerk shows that each note was a true and correct copy of the original note which was presented to him for probate as a claim against the Estate of Gaines P. Wilson. The clerk also certified that after each original note was filed and numbered it was withdrawn and the copy substituted. It is true that the clerk did not mark on any of the original notes the word "filed" and did not number the original notes, but this omission did not invalidate the probation of the notes. We hold that the certificate of the clerk was sufficient and that the notes were duly probated as required by statute.

II.

Are the claims as probated too ambiguous to permit allowance?

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Bluebook (online)
364 So. 2d 1117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-wilson-v-national-bk-of-commerce-miss-1978.