Cheairs v. Cheairs

CourtUnited States State Supreme Court of Mississippi
Citation33 So. 414,81 Miss. 662
Decision Date02 February 1903

33 So. 414

81 Miss. 662



Supreme Court of Mississippi

February 2, 1903

FROM the chancery court of, second district, Coahoma county. HON. A. McC. KIMBROUGH, Chancellor.

Calvin Cheairs' executors, appellants, were complainants in the court below; the administrators of the estate of Samuel D. Cheairs, deceased, appellees, were defendants there. The facts are sufficiently stated in the opinion of the court.

Affirmed and remanded.

Tim E. Cooper and St. John Waddell, for appellants.

The single question presented by this appeal is whether the omission from an affidavit for probate of a claim against an estate of the averment that the debt was not usurious, precludes recovery on the debt, there being no pretense that in fact there was any usury. There was no contest of the justice of the claim made by the representative of the estate, nor by any distributee, heir or creditor, as is provided by the code, § 1934, may be made. The clerk approved, allowed and registered the claim.

The position assumed by the appellee would, it is submitted, never have been taken, but for the rhetorical language of Judge Harris in the case of McWhorter v. Donald, 39 Miss. 779. In that case a claim was probated on the oath of a husband in favor of his wife, against the estate of her deceased mother for board for the mother and stepfather. The learned judge declared it to be "clear from the proof in this cause that this claim is without shadow of foundation. It neither rests on contract nor finds the least sanction in any code of morals. It is unconscientious, and should not, therefore, be tolerated in a court of justice having power to reject it."

If the claim was, in the opinion of the court, of this character, it was clearly not helped by the probate, nor if it had been a valid claim would it have been invalidated by a defective oath for probate. The probate under the then existing statute, was nothing more than notice to the personal representative of its existence; it afforded no protection to the personal representative paying it, if in fact it was not a valid demand. This had been decided long anterior to the decision in McWhorter v. Donald, in the case of Sumrall v. Sumrall, 24 Miss. 258. It was afterwards decided in Sims v. Sims, 30 Miss. 333; Gray v. Harris, 43 Miss. 421.

In Sumrall v. Sumrall, Judge Yerger delivering the opinion of the court, thus explained the purpose and effect of a probate on an ex parte affidavit under the statute: "There is a provision in the statute for the allowance by the probate judge of claims against estates. That provision in the statute was only intended to justify a voluntary payment by the executor or administrator. It was not obligatory upon him, he might, after such an allowance, have refused to pay the same and contested its validity. The judgment or order of the court was not conclusive of the justice or legality of the demand. So in the case of an executor or administrator, who is also a creditor of the estate. An order or judgment of the court allowing the same on a mere ex parte application and proof, is not, in our opinion, binding and conclusive upon the heirs or distributees. At best the order of allowance so made, can only be treated as prima facie evidence that the claim is just and valid, and we have no doubt that when the administration account is presented for final settlement and allowance, it is entirely competent and proper for the parties interested in the estate to except to the item of account so allowed; and if upon proof on such final settlement, it shall appear to be an unfounded or illegal demand, it then becomes the duty of the probate court to reject and disallow it, although upon the mere ex parte application and proof of its validity, It may have been examined and allowed." In Rawlins v. Poindexter, 27 Miss. 61, it had been distinctly decided that a suit might be brought upon an unprobated claim. In Sumrall v. Sumrall, that the probate of the claim made a prima facie case, that the claim was legal, and entitled the executor to a credit unless the claim was disproved. In the face of these decisions and without referring to them Judge Harris, by the sweep of an unrestrained and thoughtless pen, overruled them both and held that the personal representative cannot pay a claim unless the probate is perfect and the claim legal, and that a perfect probate does not make a prima facie case for the executor or administrator. But the error of this opinion is deeper yet.

The clerk of the court acts judically in allowing claims and admitting them to probate. The oath of the creditor is the evidence on which he acts. In most of the states the presentation and probate of claims against estates is held to be res adjudicata.

Moon v. Hildebrant, 14 Tex. 312, fully reported and annotated in 65 Am. Dec., 119. We do not claim any such conclusive effect is given to the allowance of a claim by the clerk of the court, under our statutes. We concede that the probate allowance and registration do not make a conclusive adjudication; that it is the duty of the executor or administrator, notwithstanding the allowance, to contest the validity of any claim the justice and legality of which is doubtful.

Our contention is only this, that an irregular or defective affidavit for the probate of a claim, does not, after the claim has been allowed and registered by the clerk, avoid the allowance and discharge the estate from its payment.

With the exception of the remarks of Judges Harris in McWhorter v. Donald, the decisions of this court have been, without discord, that the purpose and effect of the statute is to give notice to the personal representatives, and to heirs, distributees, legatees and creditors, of the condition of the estate; to provide a short statute of limitations barring debts not presented, and to afford prima facie evidence of the legality of the claim in favor of a personal representative paying the probated claim. Miller v. Jefferson College, 5 Smed. & M., 651; Cohea v. Commissioners, 7 Smed. & M., 437; Sumrall v. Sumrall, supra; Sims v. Sims, supra; Haralson v. White, 38 Miss. 178; Gray v. Harris, supra; Rawlings v. Poindexter, supra; Bank v. Rhew, 37 Miss. 110.

It is to be observed that the legislature does not use the same words in the several sections of the code noted. In §§ 1931, 1932 and 1933 the words of the statute are "probated, allowed, and registered." In §§ 1935 and 1936, the words are "probated and registered." In § 1895, it is provided that any creditor whose claim has been "registered" (omitting the words probated and allowed), may petition for the sale of the real and personal property for the payment of debts. We are therefore within the letter of the statute if that is to be controlling, for our claim was unquestionably "registered." But we are not only within the letter, but also within its purpose and equity.

The whole purpose of the law is to exhibit by the record of the court having administration of the estate, the extent of the liabilities of the decedent, and that this should be speedily done. An impartial officer is pointed out before whom proof by the creditor is to be made, and there is reserved to the personal representative, and to the heirs, legatees and other creditors the right to object to any claim presented; to have the same referred to auditors; to compel the creditor to establish by proof his claim; to introduce evidence disproving it, and to take the judgment of the court on the report of the auditors.

Whether the allowance of the claim is conclusive against the estate as the judgment of a court would be, and as is very generally held as shown by the authorities heretofore cited, or whether the allowance has a more limited and inconclusive operation, is one question. But whether the clerk acts ministerially or judicially in making the allowance and admitting the claim to registration, is a totally different inquiry.

The contention of the appellee is that the clerk acts ministerially, and that the making of the precise statutory affidavit by the creditor is a condition precedent to his authority to admit the claim to registration. Our contention is that the clerk acts judicially, and that the oath of the creditor is but evidence, and a part of the evidence, upon which he acts; that the allowance and registration of the claim are not avoided by reason of defective evidence.

There are some acts of a clerk which are purely ministerial in their character, and rest for their authority upon a strict conformity to statutory provisions. In such cases if the clerk does an unauthorized act the act itself is void and may be disregarded. (Freeman on Judg., secs. 129, 153). But if the act...

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