Whatley v. Hughes

53 Miss. 268

• Court: Mississippi Supreme Court
• Decided: October 15, 1876
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The claim set up in this case by the appellee, and which was sustained by the Chancellor, grew out of a contract by which the appellee’s intestate agreed, for the purpose of collecting a claim against the estate of a deceased person, to administer on said estate, and thereby make said collection, and, for his services, to retain one-half of the amount collected.

It was well said, in Spinks v. Davis, 32 Miss. 152, that such a contract is immoral and against public policy. It is the duty of a person receiving a claim for collection to use all lawful means to collect it. It is the duty of an administrator by all lawful means to defeat all claims which are not legal charges against the estate of which he is the representative. A contract, therefore, by which a person undertakes for a consideration to assume and discharge the duties of these antagonistic positions is illegal, and, in so far as it remains executory, is incapable of enforcement.

The decree of the Chancellor will be reversed and the cause remanded, with instructions for a decree in accordance with this opinion.