Bankston v. Albert Coopwood

• Decision Date: 15 May 1911
• Court: Mississippi Supreme Court
• Parties: L. L. BANKSTON v. ALBERT COOPWOOD, EXECUTOR, ESTATE OF T. D. COOPWOOD, DECEASED

55 So. 48

99 Miss. 511

L. L. BANKSTON v. ALBERT COOPWOOD, EXECUTOR, ESTATE OF T. D. COOPWOOD, DECEASED

Supreme Court of Mississippi

May 15, 1911

March 1911

APPEAL from the circuit court of Tunica county, HON. M. E. DENTON Chancellor.

Proceedings to establish by L. L. Bankston, a claim against the estate of T. D. Coopwood, deceased. From a judgment in favor of Albert Coopwood, executor, claimant appeals.

The facts are fuly stated in the opinion of the court.

Reversed and remanded.

W. L Bankston, for appellant.

The single question presented by this appeal is whether the omission of Dr. L. L. Bankston to sign the account would invalidate and preclude recovery of the debt. There was no contest of the justice of the claim. made by the representative of the estate, nor by any distributee, heir or creditor, and it is proved as provided by Code, sec. 2108. The clerk approved, allowed and registered the claim.

We submit that the claim was properly presented to the clerk in an itemized account, signed by the creditor, and sworn to by the creditor in strict compliance with Code, sec. 2106. The affidavit is a part of the probated account and the signing and swearing to same by the creditor is signing and swearing to the account as contemplated by last named section. This statute does not say and certainly does not mean that an account has to be signed. It says, "if there be no written evidence thereof, an itemized account or a statement of the claim is writing, signed by the creditor, and make affidavit, to be attached thereto." So it is very clear that the legislature said and meant to say that the statement should be signed, and not the account, but that the prescribed affidavit signed and sworn to would be sufficient.

It was agreed in the court below by appellee's attorney that if Dr. L. L. Bankston had written his account in his own hand writing instead of using a printed bill head thus writing his name in the caption of the account that then he would have complied with the statute. This construction would render the law a perfect farce, and it would be unreasonable, unjust and exceedingly technical, and we cannot believe that this statute will be given such hair splitting technical construction thus defeating honest, just and undisputed claims.

We submit that the order of the court disallowing this claim should be reversed.

J. T Lowe, for appellee.

We insist that the learned chancellor below was correct in his holding in this cause, in which he followed the plain terms and provisions of the statute, section 2106 of the Code of 1906, which are in words as follows: to-wit: (We copy the essential parts.)

"Any person desiring to probate his claim shall present to the clerk the written evidence thereof . . . . . . . . . . . . . . . . . . an itemized account, or statement of the claim in writing, signed by the creditor, and make affidavit, to be attached thereto, etc., etc.

The appellant presented to the clerk his itemized account, but he did not sign the itemized account. He made the affidavit to be attached thereto, said affidavit made as required by the statute, etc., and he did attach said affidavit thereto in the usual way, by pasting and appending it to the account, but as aforesaid, he failed to sign the said itemized account. In this he failed to comply with the strict requirements of the statute, which was fatal to his cause, and so held and decided by the learned chancellor below.

Strictly in line with our contention, is the case of Walker v Nelson, Executor, 87 Miss. 268, cit...