Fidelity Mut. Life Ins. Co. v. Goldstein

• Decision Date: 02 January 1940
• Docket Number: 33921
• Citation: 192 So. 584,187 Miss. 285
• Court: Mississippi Supreme Court
• Parties: FIDELITY MUT. LIFE INS. CO. v. GOLDSTEIN et al

192 So. 584

187 Miss. 285

FIDELITY MUT. LIFE INS. CO. v. GOLDSTEIN et al

No. 33921

Supreme Court of Mississippi, Division A

January 2, 1940

APPEAL from the chancery court of Washington county HON. J. W WILLIAMS, Chancellor.

Proceeding by the Fidelity Mutual Life Insurance Company against Montrose Goldstein and others on claims against the estate of Nathan Goldstein, deceased. From a decree disallowing the claims, the Fidelity Mutual Life Insurance Company appeals. Reversed and judgment granted for claimant.

Reversed and judgment here for appellant.

Watkins & Eager and Hardy R. McGowen, all of Jackson, for appellants.

The statute in force at the time these claims were probated against Mr. Goldstein's estate is Chapter 304, Laws of 1934.

The contention was made by appellees upon the hearing of this cause in the court below that the probate of the notes and other evidences of indebtedness was void because the chancery clerk in allowing the claims did not endorse upon the original evidences of indebtedness the words following "Probated and allowed for $-- -- and registered this -- day of -- -- -- A. D., --."

It was our contention upon the hearing of the case in the court below and it is our contention before this honorable court that there is nothing in the wording of the statute which requires this certificate to be endorsed upon the original written evidences of indebtedness but that it is entirely sufficient and in strict compliance with the statute if the above quoted language be endorsed upon the "claim." It being our contention that the word "claim" as used in the statute refers to the statutory affidavit.

Lehman v. Powe, 95 Miss. 446, 49 So. 622.

We personally have examined records of claims based on promissory notes and other instruments of writing on file in the office of the Chancery Clerk of Hinds County at Jackson Mississippi, our examination going back over a period of over 40 years, and we do not find in any instance where the endorsement was made upon the original evidence of the indebtedness. As a matter of fact, in Hinds County and in Washington County it has been the practice of the clerks and of the attorneys, without exception, to use a printed form containing the statutory affidavit and a form of the clerk's certificate printed at the foot thereof allowing the claim.

Since the court has held that the clerk in probating, registering and allowing a claim against an estate is performing a quasi judicial act and that the clerk in signing his name to such certificate of allowance is performing a ministerial duty, we do not believe that the court will say that the certificate of probate and allowance should be written upon the original notes or original evidences of debt, which papers are, as stated by the court, apt to become lost and certainly are very probably to be withdrawn from the files of the court.

Jordan v. Love, 171 Miss. 523, 157 So. 877.

In the case of Davis v. Blumenberg, 107 Miss. 432, 65 So 503, this court in a per curiam opinion held that it would not sacrifice substance to form where the statute had in all respects been complied with.

Ellsworth v. Busby, 172 Miss. 399, 160 So. 575.

In the case of First Columbus National Bank v. Holesapple-Dillman, 174 Miss. 234, 164 So. 232, and Wilson v. Yandell, 174 Miss. 713, 165 So. 430, the claims are probated appear to have been held by the court to be incomplete, one for the reason that a promissory note was not presented for probate along with an account and the other for the reason that some explanation or account was not filed along with a note.

In the case at bar, we had a note for $ 9600, a note for $ 240, and an extension agreement reciting an indebtedness of $ 10, 200, and we do not think that the claim as probated should be held by this court to be void because of the fact that there was filed along with and as a part of the probate of the claim a simple statement showing credits and debits against all three of these instruments and showing the balance due to be as stated in each of the certificates of allowance as well as in the statutory affidavit which accomapnied each claim.

Bankston v. Coopwood, 99 Miss. 511, 55 So. 48.

There is nothing in the statute with reference to claims based upon written evidences of indebtedness which requires that the clerk's endorsement shall be at any place other than upon the claim, and we think that a promissory note or other evidence of indebtedness is not of itself a claim. It is merely an evidence of indebtedness but we do think that an affidavit which expressly recites that a decedent is indebted to a claimant in a specified amount which claim is unpaid, due and owing, etc., does constitute a claim and that the affidavit itself is the claim referred to and intended by the statute is designating the place where the clerk shall make his endorsement probating and allowing a claim. If, as stated by Judge Anderson, in the Bankston case, the statute does not point out any particular place where the claim shall be signed where an account is involved, then we respectfully submit there is certainly not a word in the statute pointing out where a claim shall be endorsed by the clerk in connection with a promissory note or other written evidence of indebtedness.

Jordon v. Love, 171 Miss. 523, 157 So. 877.

In the case at bar, we wish to call the attention of the court to the fact that both methods suggested by Judge Griffith were followed in probating these two claims; that is to say, all of --the original evidences of indebtedness, together with the original instruments securing the same, were all actually presented to the Chancery Clerk and were by him actually marked "Filed" and his signature, together with the official seal of the Chancery Court of Washington County, Mississippi, all appear endorsed upon all of these original instruments, and in addition to this the Chancery Clerk made, retained and filed among the papers in the cause, just as suggested by Judge Griffith, certified copies of all of these original evidences of indebtedness and all of these certified copies are likewise marked "Filed" officially by said Chancery Clerk.

Merchants & Manufacturers Bank v. Busby, 172 Miss. 394, (398), 160 So. 577; Merchants' and Manufacturers' Bank v. Fox, 165 Miss. 833, (839), 147 So. 789.

We have examined the last ten or twelve original records filed in the Supreme Court of Mississippi where the validity of claims probated against estates were involved, and we find that in every one of these ten or twelve records the claims were presented to the Clerk in the same form in which these two claims were presented; that is...