Boutwell v. Farmers & Traders Bank

• Decision Date: 24 June 1918
• Citation: Boutwell v. Farmers & Traders Bank, 118 Miss. 50, 79 So. 1 (Miss. 1918)
• Parties: BOUTWELL v. FARMERS & TRADERS BANK
• Court: Mississippi Supreme Court

79 So. 1

118 Miss. 50

BOUTWELL v. FARMERS & TRADERS BANK

Supreme Court of Mississippi

June 24, 1918

March 1918

Division A

APPEAL from the chancery court of Jones county, HON. G. C. TANN Chancellor.

Action by the Farmers & Traders Bank against Allen Boutwell administrator of the estate of T. H. Oden, deceased, to recover on a claim against said estate. From a judgment for plaintiff, defendant appeals.

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

Decree affirmed.

Goode Montgomery, attorney for appellant.

The claims are barred by statute. Section 2103, Code of 1906 provides: "It shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have the same probated and registered by the clerk of the court granting letters, within one year, which notice shall state that a failure to probate and register for one year will bar the claim, and the time when the letters were granted; and the notice shall be published for three consecutive weeks, and proof of publication shall be filed with the clerk."

The following notice was published in the Laurel Chronicle, a newspaper published in the second district of Jones county Mississippi, beginning February 26, 1913, and continuing three weeks: "Administrator's notice to creditors of T. H. Oden. Letters of administration having been granted on the 22nd day of February, 1913, by the chancery court of the second district of Jones county, Mississippi, to the undersigned upon the estate of T. H. Oden, deceased, notice is hereby given to all persons having claims against said estate to present the same to the clerk of said court for probate and registration according to law within one year from the date, or they will be forever barred.

"This 25th day of Febuary, 1913,

"J. R. MCPHERSON, Administrator."

The proof of publication filed and the testimony both show the above publication to have been made as the law directs, and no witness even hints at a dispute of these facts. Section 2107, Code of 1906, provides: "All claims against the estate of a deceased person, whether due or not, shall be registered, probated, and allowed in the court in which the letters testamentary or of administration were granted, within one year after the first publication of notice to creditors to present their claims; otherwise the same shall be barred, and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator."

Shannon & Shauber, attorneys for appellees.

The first assignment for error discussed by counsel for appellant in his brief is that claims sixty-three and sixty-five which were allowed by the court, are barred by the one year statute of limitations, this being section 2107, of the Mississippi Code of 1906, being brought forward as section 1775 in Hemingway's Code of 1917.

The period of limitations prescribed by the above section 2107 is put into operation in manner provided for by section 2103 of the Mississippi Code of 1906, and no other, which section is brought forward as section 1771, in Hemingway's Code of 1917, and is in the following words:

"It shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have the same probated and registered by the clerk of the court granting letters, within one year, which notice shall state that a failure to probate and register for one year will bar the claim, and the time when the letters were granted; and the notice shall be published for three consecutive weeks, and proof of the publication shall be filed with the clerk. If a paper be not published in the county, notice by posting at the court house door and three other places of public resort in the county shall suffice, and affidavit of such posting filed shall be evidence thereof in any controversy in which the fact of such posting shall be brought into question.

We contended in the court below, and after hearing all the evidence, the lower court sustained our contention, that the notice to creditors did not come up to the requirements of said section 2103 in that it was not published for three weeks nor was a proof of the publication filed with the clerk.

The record shows that the general docket kept in the office of the clerk of the chancery court does not show that a proof of the publication was ever filed in said cause (see page 47 of the Record). The testimony of W. T. Simmons, the attorney who represented the administrator and who took out the letters of administration, states that he does not remember having ever seen the proof of publication, nor is there any testimony in the record that such a proof of publication was ever made or seen by any one. There is positive testimony that no such proof of publication was ever filed with the clerk in compliance with said statute.

We call the court's attention to the case of Marshall v. John Deere Plow Co., decided by this court in March, 1911, and reported in the 99th Mississippi Reports on page 284, in which the same statutes were up before this court for construction.

Mr Chief Justice SMITH, in delivering the opinion, in part, says: "In order that the estates of decedents may be speedily settled, creditors thereof who fail to comply with the terms of section 2107 of the Code are barred...