King v. Jones

158 So. 457, 158 So. 796, 171 Miss. 886, 1935 Miss. LEXIS 19

• Court: Mississippi Supreme Court
• Decided: January 21, 1935
• Docket: No. 31495.
• Status: Published

Opinions

This is an appeal from a decree that the probate of a promissory note against the estate of a decedent is void.

The note was presented to the chancery clerk by the owner, accompanied by a request for the withdrawal thereof. The clerk attached a copy of the note to the owner's affidavit thereto and the clerk's certificate allowing the claim. On the back of the note there appears the following certificate: "I hereby certify that this is a true and correct copy of the original" — which certificate was signed by the clerk, but his seal was not impressed thereon. Such a seal does appear on the clerk's certificate of allowance of the claim. The original note was returned by the clerk to the owner with the following thereon signed by him: "Probated and withdrawn this the 11th day of March."

The objections made to the probate of this claim are: (1) That the certificate of the clerk on the back of the copy of the note probated does not contain the words "this date exhibited to me," and (2) the seal of the clerk does not appear thereon. The first of these objections will be left out of view, and no opinion will be expressed thereon. The absence of the seal authenticating the clerk's signature to the certificate is fatal. The seal appearing on the certificate to the probate does not cure this defect; for section 1671, Code 1930, which here governs, requires a certificate to the copy of the note separate and distinct from the certificate of probate thereof, from which it necessarily follows that the clerk's signature to each of the certificates must be authenticated by his seal of office.

Affirmed.