W. N. Wilkerson & Co. v. Dockery

2 Miss. Dec. 50

• Court: Mississippi Supreme Court
• Decided: January 9, 1882
• Status: Published

Opinion

Opinion.

Cooper, J.:

The publication of the notice of grant of letters testamentary was commenced within the time required by the statute. Code 1871, § 2937.

No evidence,- however, was given to show that more than one publication was made of the notice. This was not sufficient. The Code provides not only that the notice shall be given by the executor “within one month after the grant of his letters,” but also that the notice “shall be published for three consecutive weeks, or longer, if the court should so direct.”

Creditors are not bound by the notice unless it is given in conformity with the directions of the law. Pearl v. Conly, 7 S. & M. 356; Bank of Ala. v. Windham, 31 Miss. 317.

The verdict and judgment is contrary to the' evidence. It is shown by the testimony of the executor that the books of his testator contained an entry made by him evidencing the existence of the debt to the plaintiffs, and that this entry was seen by the executor both before and after the grant to him of letters testamentary. This was notice to the executor of the" debt and notice was equivalent to probate of the claim. See authorities cited in George’s Digest, p. 29 Y, § 277.

Judgment reversed and new trial awarded.