Dillard & Coffin Co. v. Woollard

• Decision Date: 28 February 1921
• Docket Number: 21440
• Citation: 124 Miss. 677,87 So. 148
• Parties: DILLARD & COFFIN CO. v. WOOLLARD
• Court: Mississippi Supreme Court

87 So. 148

124 Miss. 677

DILLARD & COFFIN CO. v. WOOLLARD

No. 21440

Supreme Court of Mississippi

February 28, 1921

1. EXECUTORS AND ADMINISTRATORS. Act requiring claims to be probated within one year refers to claims on which suit has not been brought during decedent's lifetime.

Section 2107, Code of 1906 (Hemingway's Code, section 1775) requiring all claims against the estate of a deceased person to be "registered, probated and allowed... within one year,... otherwise the same shall be barred," refers only to claims upon which suit has not been instituted during the lifetime of the deceased.

2. EXECUTORS AND ADMINISTRATORS. Suit against deceased defendant may proceed to judgment without probating claim against estate.

Under section 2093, Code of 1906 (Hemingway's Code, section 1760), upon the death of defendant, where the executor or administrator has been served with a scire facias or summons the suit may be proceeded with to final judgment without the clai being probated against the estate of the decedent. The scire facias or summons served on the executor does not make it a new suit, but it is merely a proceeding in the original suit.

3. STATUTES. Each of several sections adopted at the same time must be given effect, if possible.

Sections 2093, 2105--2108 (Hemingway's Code, sections 1760, 1773--1776), were adopted at the same time as a part of the Code of 1906. It is the duty of the court, in construing them, to give force and effect to each and every one of these sections, if such a reasonable construction be possible.

HON. B F. WASSON, Special Chancellor.

APPEAL from chancery court of Bolivar county, HON. B. F. WASSON Special Chancellor.

Suit by P. B. Woollard, executor of the estate of S. J. Simpson, deceased, against the Dillard & Coffin Company, to remove cloud on title. Decree for plaintiff on demurrer, and defendant appeals. Reversed, and bill dismissed.

Decree reversed, and bill dismissed.

George Butler and G. E. Williams, for appellant.

J. W. Cutrer and Shands & Causey, for appellee.

No brief for counsel of either side found in the record.

OPINION

SYKES, J.

This is an appeal from a decree of the chancery court of Bolivar county overruling the demurrer of the appellant to the bill of complaint of the appellees. The bill and exhibits thereto present the following facts, namely: That the appellee, Woollard, is the surviving executor of the estate of S. J. Simpson, deceased. That during the lifetime of S. J. Simpson a suit was filed in the circuit court upon a note signed by E. W. and E. C. Moss as makers and S. J. Simpson as indorser. The Mosses filed no plea. Simpson filed a plea of non est factum. After the filing of this plea the case was continued for several terms of court. Simpson then died, leaving a will. There was a contest about the will, pending which Woolard was appointed temporary administrator of the estate. The temporary administrator was duly served with a scire facias as provided by section 2093 of the Code of 1906. The chancery court having established the legality of the will, the two executors thereunder, one of whom was Woollard, were duly served with a scire facias under this same section.

Proper notice was given to creditors to probate their claims against the estate of Simpson. This note already in suit was not probated. No pleas were filed in the circuit court by the temporary administrator or the executors of the estate. The case proceeded to trial in the circuit court, where a verdict and judgment were duly rendered in favor of Dillard & Coffin Company. This judgment has been enrolled. The bill prays that this judgment be decreed unenforceable against the property or estate of Simpson and not a valid claim against it; that it is a cloud upon the title of the lands, and is an obstruction to the proper administration of the estate; and prays that the judgment be canceled and annulled.

There is but one question necessary for us to consider upon this appeal, and that is whether or not this note upon which suit had been brought during the lifetime of the testator, and which suit was pending at his death, should have been probated under section 2107, Code of 1906 (Hemingway's Code, section 1775), which provides that all claims against the estate of a deceased person shall be registered, probated, and allowed in the court in which the letters testamentary were granted within one year after the first publication of notice to creditors; otherwise they 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. If it were necessary to probate this note, its probation is now barred by this statute of limitation.

It is the contention of the appellee that the circuit court judgment is void; that under sections 2105, 2106, and 2107 of the Code of 1906 (Hemingway's Code sections 1773, 1774, and 1775), there are laid down certain conditions precedent to be performed before a creditor can fix a charge upon the assets of a decedent; that until this is done there is no valid claim against the estate of the decedent that under ...