Lehman v. Powe

49 So. 622, 95 Miss. 446

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinions

Smith, J.,

delivered the opinion of the court.

In dne course of the administration of the estate of T. J. George, deceased, in the chancery court of Forrest county, the same was declared insolvent. The administrator was ordered to cause a notice to be published directing the creditors who had probated their claims to file same with the clerk of that court on or before Monday, the 13th day of January, 1908, and notifying them that said claims would be examined and objections thereto heard by N. T. Ourry, master in chancery, at the courthouse in the city of Hattiesburg, on Monday, the 20th day of January, A. D. 1908. On the day appointed the master proceeded to examine and approve the claims filed with the clerk, including the claims of all parties hereto, and in due course reported his action to the chancery court. No objection was made to the claims of appellees before the master; but on the coming in of his report exceptions were filed in the chancery court by appellees, whereupon, by order of said court, the same were referred to two auditors, with directions to hear and determine said exceptions and report their findings, together with the evidence heard by them, to the court. After hearing the evidence, they reported to the court, recommending that these claims be allowed, and there was a decree in accordance with such recommendation, and from it this appeal is taken.

It is insisted by appellees that appellants cannot now be heard to object to the allowance of their claim, for the reason that they (appellants) failed to appear before the master and object thereto. "Where a matter has been referred by a chancery court to a master, the rule is that, in order to lay the foundation for the presentation of exceptions as to all matters depending on proof and confided to the judgment of the master, the party must make an objection before the master, so that he may have an opportunity to correct his ruling; but as to all matters of law apparent on the record such objection is not necessary. 16 Cyc. 448; Davis v. Foley, Walk. 43; Fowler v. Payne, 52 Miss. 210. All objections, therefore, to the claims of appellants, except those of law appearing on the record, were waived by reason of not having been made before the master.

The claim of A. T. Powe was excepted to on two grounds: First, because it is barred by the statute of limitations; second, because it is feigned and fictitious. Both of the exceptions relate to matters depending on proof, which were confided to the judgment of the master, and under the rule above announced cannot now be considered. But, even if this were not true, the claim was allowed by auditors on proof, and their report approved by the court. We think this action of the court was correct. Certainly we cannot say that it was manifest error. The decree of the court, however, allowed $240 of the amount found to be due Powe as a preferred claim, and directed this amount be paid him in full, same being his wages as bookkeeper for the deceased, at $60 per month, for the four months immediately preceding the death of deceased. This exception presents a matter of law appearing on the record, and is, therefore, open for review. The master’s report with reference to this preference is as follows: “Tour master reports further on this claim that the same is asked to be allowed as a preference claim to the amount of $240, wages for four months at $60 per month; and, being unable to find authority of law for allowing such part of said claim as a preference, your master respectfully refers the question of preferring said claim, to such amount, to your honor.” Like him, we have not found or been referred to any law which would warrant this preference. Its allowance, therefore, was error. Powe was simply a general creditor of the estate, with no greater rights than the other general creditors.

Coming, now, to the claim of E. B. George, we find that it is objected to on two grounds — that it is feigned and fictitious, and that same was not probated in the manner required by law. The last objection presents an error of law appearing on the record, and is open for review. This claim is for $600, and the probate consisted in presenting to the clerk two canceled, checks, with the affidavit required by section 2106 of the Code of 190.6, attached thereto.' These checks, with the indorsements thereon, are as follows:

“Hattiesburg, Miss., Sept. 22nd, 1906. No. ■ — ■-1. Hattiesburg Trust & Banking Company: .Pay to the order of T. J. George $100.00, One Hundred Dollars and no/100 Dollars. E. B. George.”

“No. 5,250. The First National Bank. Hnited States Depository. Hattiesburg, Miss., March 21, 1905. Pay to the order of E. B. George $500.00, Five Hundred and no/100 Dollars. To Germania National Bank, New Orleans, La. James W. Harper, Asst. Cashier.”

Both of the foregoing instruments are marked “Paid.” The following indorsements appear on the back of these two instruments: On the first: “T. J. George.” “A. T. Powe.” On the second, or $500' draft: “E. B. George.” “T. J. George.” “For deposit. B. Besenberg & Sons. Through N. O. Clearing House. Indorsements guaranteed. March 22, 1905. ‘2’ Hibernia Bank & Trust Co.”

Code 1906, § 2106 provides: “Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, or, if the claim be a judgment or a decree, a duly certified copy thereof, or if there be no written evidence thereof, an itemized account, or a statement of the claim in writing, signed by the creditor,” etc.

It is not contended by counsel for appellee that these checks constitute an itemized account or statement of the claim in writing signed by the creditors; but the contention is that they constitute the written evidence of the claim. It becomes necessary, therefore, Jo determine what 'is meant by “written evidence” of the claim. Does it mean any or every writing relating to the claim, or does it mean such a writing on it as shows by its terms that a liability exists on the part of the estate? One of the objects of the statute in requiring claims to be probated, allowed, and registered is that the administrator and all other parties concerned may ascertain what debts are claimed to be due by the estate, and act intelligently in determining whether the same are just and should be paid, or whether the same should be contested. The statute also clearly contemplates that, in presenting claims against the estate of a decedent, the evidence or statement of same probated must on its face show a prima facie right in the claimant to recover from the estate the amount claimed, and that it must disclose the nature and amount of the claim with sufficient precision to bar, when paid, an action therefor.

These canceled checks disclose no liability at all on the part of the estate to any one. In fact, they showed no liability from any person to’ another, and could not have been used as a foundation for a suit in any court. They could have been used, it is true, as evidence 'in a suit for money loaned, if in fact they related to such a transaction, but only as'one link in the evidence necessary to maintain such a suit. Their mere introduction in evidence in such a suit, unaided by other evidence, would not have proven anything. The words “written evidence,” as used in the statute, clearly mean such a writing as by its terms or on its face evidences the fact that a liability exists on the part of the estate in favor of the claimant. Code 1906, § 2106, is mandatory, and, unless it has been complied with, the administrator, under Code 1906, § 2105, has no authority to pay the claim; nor has the court power to order him so to do, unless Code 1906, § 2106, has been complied with. The allowance of this claim was error.

In some of the states, probably in most of them, the statute does not require that claims shall be presented for probate in any particular form; but where the statute does so require, as is the case with us, it must be complied with. 8 Am. & Eng. Ency. of Law (2d ed.) p. 1074.

It follows, therefore, that the decree of the lower court is affirmed, except as to the allowance of $240 to A. T. Powe as a preference, and as to the allowance of the claim of E. B. George for $600. As to these two items, the decree is reversed, and the cause remanded.

Reversed.