Jennings v. Lowery Berry

112 So. 692, 147 Miss. 673, 1927 Miss. LEXIS 304

• Court: Mississippi Supreme Court
• Decided: April 25, 1927
• Docket: No. 26203.
• Status: Published

Opinions

Anderson, J.,

delivered the opinion of the court.

The appellees, Lowery & Berry, brought their bill in the chancery court of the second district of Tallahatchie county against Mrs. Dollie W. Jennings, Smith Murphy, and Dr. J. D. Biles, executors and trustees under the will of H. J. Jennings, deceased, to recover from the estate of the said decedent the sum of twelve thousand dollars, with interest;.the claim sued on consisting of four promissory notes for three thousand dollars each, executed by the testator, PI. J. Jennings, in favor of the appellees. The appellants were granted an appeal from an interlocutory decree to settle the principles of the cause, and the appellees prosecuted a • cross-appeal from such interlocutory decree.

The appellants, as executors of the will of H. J. Jennings, under section 2103, Code of 1906 (Hemingway’s Code, section 1771, as amended by chapter 302, Laws of 1920), made publication to the creditors of the estate to register, probate, and have allowed their claims against the estate. But proof of publication of such notice was not filed with the clerk until after the expiration of the period of six months from the first publication of the notice. Unless the statute required the proof of publication of notice to be filed within that period, the statute was in all respects complied with. Appellees, attempting to comply with section 2106, Code of 1906 (Hemingway’s Code, section 1774), had the notes, which were the basis of this action, registered, probated, and allowed within six months after the first publication of notice to creditors; but, for reasons unnecessary to state, they failed to comply with the statute in a vital requisite, the result of which, under the decisions of this court, was that the registration, probation, and allowance of the claim were void. But, after the expiration of the six-month period, appellees had their claim legally registered, probated, and allowed under the statute, provided that under the statute they had a right so to do at that late a day.

The questions for determination are: (1) Whether the filing of the proof of publication of the notice to creditors with the clerk was a condition that had to be complied with to set in motion the six-month statute of limitations ; and, if that question be answered in the affirmative, (2) whether it was also a condition that had to be complied with in order to set the statute in motion, that such proof of publication of notice be filed with the clerk within six months after the first publication of the notice. We shall consider these questions in the order stated.

Section 21031, Code of 1906 (Hemingways Code, section 1771, as amended by chapter 302, Laws of 1920'), follows:

“Notice to Creditors. — It shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have the same probated and regis tered by the clerk of the court granting letters, within six months, which notice shall state that a failure to probate and register for six months will bar the claim, and the time when the letters were granted; and the notice shall be published for three consecutive weeks and proof of publication shall be filed with the clerk. If a paper be not published in the county, notice by posting at the court house door, and three other places of public resort in the county shall suffice, and affidavit of such posting filed shall be evidence thereof in any controversy in which the fact of such posting shall be brought into question. ’ ’

Section 2107, Code of 1906 (Hemingway’s Code, section 1775, as amended by chapter 303, Laws of 1920), is in this language

“Claims Registered Within Six Months or Barred.— All claims against the estate of a deceased person, whether due or not, shall be registered, probated and allowed, in the court in which the letters testamentary or of administration were granted, within six months after the first publication of notice to creditors to present their claims; otherwise the same shall be barred, and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator.”

This court has held in numerous cases that section 2106, Code of 1906 (section 1774, Hemingway’s Code), providing the manner in which the claims of creditors shall be registered, probated, and allowed against the estates of decedents, must be strictly pursued by creditors; in other words, that the statute should be strictly construed against creditors. Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Walker v. Nelson, 87 Miss. 268, 39 So. 809.; Saunders v. Stephenson, 94 Miss. 676, 47 So. 783; Lehman v. Powe, 95 Miss. 446, 49 So. 622; Lehman v. George, 99 Miss 798, 56 So. 167; Cudahy & Co. v. Miller, 103 Miss. 435, 60 Sd. 574; McMahan v. Foy, 104 Miss. 309, 61 So. 421; Stevens v. Dunlap, 108 Miss. 690, 67 So. 160; Persons v. Griffin, 112 Miss. 643, 73 So. 624; and Levy v. Bank, 124 Miss. 325, 86 So. 807. In view of that construction of the statute prescribing the manner in which claims of creditors against the estates of decedents shall be registered, probated, and allowed, it seems only fair to creditors of such estates that the statute prescribing the manner of the publication of notice to creditors to have their claims registered, probated, and allowed should receive a liberal construction in favor of creditors and a strict construction against the estates of decedents. In construing statutes of limitations, the courts may consider the reasonableness of the result of a particular interpretation and the practical effect of the adoption of a different interpretation. 17 R. C. L., p. 685, section 31. It will be observed that the statute providing for publication of notice to creditors states:

“The notice shall be published for three consecutive weeks, and proof of publication shall be filed with the clerk.” (Italics ours.)

According to the language of the statute, the requirement that the proof of publication shall be filed with the clerk is as mandatory in its terms as any other requirement of the statute. We think that it is only where the statute is complied with that the six-month limitation begins to run from the first publication of notice to creditors. Take, for illustration, a case where only one publication of notice is made, the second and third being omitted: certainly the statute would never begin to run; and likewise if the first and second publications were made, and the third omitted. We think the same is true if the last requisite of the statute be not complied with; namely, the filing of the proof of publication of notice with the clerk. Concede, for argument’s sake, that the filing of the proof with the clerk was intended only as evidence of the proper publication of notice, still it was made a part of the scheme laid down by the statute for the giving of notice to creditors, and we see no reason for holding that three publications of the notice are essential and the filing’ of the proof of the publication not essential. The one requirement of the statute is as prominently and emphatically set forth as the other, and both are essential. Boutwell v. Bank, 118 Miss. 50, 79 So. 1, so decides. In that case the proof showed, and the chancellor held as a fact, that the notice to creditors of the estate to probate their claims was not published for three weeks, and also that the proof of publication of the notice was not made and filed with the clerk. The court put its decision on two grounds, as it had the right to do, either one of which.would have been sufficient to sustain the holding of the court. The court said:

“In order to successfully invoke the benefit of the statute which bars the creditor’s claim upon failure to probate within one year after publication of notice, it must be shown clearly that the requirements of the statute have been substantially met in all respects. There was a failure to comply with the statute in this case. Especially is this true, in that, no proof of publication was filed with the clerk as required therein; therefore the claims allowed by the decree of the chancellor were not barred by limitation, and the decree is affirmed.”

There is more difficulty in determining the second proposition, because the statute is silent as to when the proof of publication of notice shall be filed with the clerk; but the statute plainly provides that it shall be filed with the clerk, and we have held above, following the Bout-well case, that the filing of the proof is a necessary condition to the setting in motion of the six-month statute. It seems that, if the executor or administrator could delay the filing of the proof until the closing of the administration, the door would be open to a good deal of confusion and injustice in the administration of the estates of decedents. There would be an incentive on the part of executors and administrators to favor creditors who had unduly delayed the registration, probation, and allowance of their claims. They would have the power to withhold the filing of the proof with the clerk in order to aid favored creditors. It is argued on behalf of the appellants that by analogy this question is settled in their favor by Buchanan v. Compress Co., 122 Miss. 518, 84 So. 691. That case involved the construction of the particular clause of section 797a, Code of 1906 (Hemingway’s Code, section 582), requiring notice to stenographers taking the testimony in cases to transcribe their notes of the evidence for the purpose of appeal. The court held that the statute did not require the notice to the stenographer to be filed with the clerk of the trial court within thirty days after the adjournment of court; consequently, it could be filed with the clerk at any time thereafter; and that, since the notice could be filed with the clerk after the expiration of the thirty days, it followed that the statement setting forth the manner of the service of the notice could be filed after the expiration of the thirty-day period. We are unable to see much force in appellants’ contention. The two statutes are on entirely different subjects, having in view the accomplishment of entirely different objects.

Keeping in view the object sought to be accomplished by the statutes here involved, namely, the orderly and just administration of the estates .of decedents, and having regard for the rights of the creditors of such estates, as well as the rights of such estates, in the absence of any provision in the statute as to when the proof of publication of notice to creditors shall be filed with the clerk, we hold that it should be filed not later than six months after its first publication; and, if it is not filed within that period, the six-month statute of limitation against the claims of the creditors is never set in motion.

These views render it unnecessary to pass on any others presented and argued.

Affirmed on both direct and cross-appeal, and remanded.