First Columbus Nat. Bank v. Holesapple-Dillman
| Decision Date | 18 November 1935 |
| Docket Number | 31921 |
| Citation | 164 So. 232,174 Miss. 234 |
| Court | Mississippi Supreme Court |
| Parties | FIRST COLUMBUS NAT. BANK v. HOLESAPPLE-DILLMAN |
EXECUTORS AND ADMINISTRATORS.
Claim against testator's estate, which purported to be itemized account or statement of claim in writing, which charged estate with purchase of note on which there was balance due would be disallowed where evidence clearly disclosed that there was no sale of note by claimant to testator, but that testator agreed to collect note for claimant, pay certain amount on debt of testator's son to testator and turn over balance to claimant, and that testator merely became claimant's agent or trustee for collection of note (Code 1930, sections 1671, 1678).
HON. T P. GUYTON, Chancellor.
APPEAL from the chancery court of Lowndes county HON. T. P. GUYTON, Chancellor.
In the matter of the estate of Walter N. Holesapple, deceased, wherein Mrs. Ruby Y. Holesapple-Dillman presented a claim against the estate. From a decree allowing the claim, the First Columbus National Bank, executor, appeals. Reversed, and decree entered for executor.
Reversed, and decree, here for appellant.
John F. Frierson, of Columbus, for appellant.
The probated account shows "by money due for sale of a note to W. N. Holesapple, Sr.," but the note was neither probated nor exhibited. No date or itemization or description of the note was probated.
The evidence was introduced on sale of promissory note, and the introduction of this note with endorsements and deed of trust was duly objected to at the trial of the case.
The account was a claim for a note of one thousand seven hundred twenty dollars with a, credit of six hundred thirty-five dollars, and the said note was not probated.
Section 2106, Code of 1906; Persons v. Griffin, 73 So. 624, 112 Miss. 643.
We respectfully submit that in the case at bar where there is no itemization whatever of the claim, the date given on the claim is improper, and does not correspond with the proof, written evidence of the indebtedness existed and was in the hands of the claimants and presented at the hearing.
Wells v. McCullough, 74 So. 289, 113 Miss. 401; Merchants & Manufacturers Bank v. Fox, 147 So. 789, 165 Miss. 833.
The claim was barred by the statute of limitation.
Sanders & Davis, Admrs., v. Robertson, 23 Miss. 389; Gray, Admr., v. Thomas, 12 S. & M. 111; Bozeman v. Brown, 6 How. 349; 1 How. 115; Henderson v. Ilsley, 11 S. & M. 9, 49 Am. Dec. 49; Succession of Driscoll, 50 So. 200; Trotter, Admr., v. Trotter et al., 40 Miss. 704; Bird v. Wells, 40 Miss. 711; Roberts v. Rogers, 28 Miss. 152, 61 Am. Dec. 542; Bingham et al. v. Robertson, 25 Miss. 501; Waul, Exr., v. Kirkman, 25. Miss. 609; Pinson v. Williams, 23 Miss. 64; Woods v. Elliott, 49 Miss. 168; Nochemson v. Aronson, 181 N.E. 188; Hall's Estate, 259 N.Y. 455; Gwinn v. Farrier, 165 S.E. 647; Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118; Roberts v. Roberts, 28 Miss. 152.
We respectfully submit that under the circumstances proof of the payment of a decree in favor of Mrs. Ruby Y. Dillman Holesapple individually on such a suit as the case at bar on such proof as introduced in this case would not protect the executor of the estate of W. N. Holesapple from liability to a properly appointed and qualified executor of that estate, setting up a proper claim on proper proof.
The claim against the estate of a decedent, although duly probated and registered, must be established by competent evidence if objected to by the administrator.
North, Admr., v. Lowe, 63 Miss. 31; Section 1586, Code of 1930; M. & O. R. R. Co. v. Swain, 145 So. 627, 629, 164 Miss. 825.
Loving & Loving, of Columbus, for appellee.
This account is itemized as fully as it can be. The account states that it was for money collected on a note, the note having been transferred by the appellee to the deceased. This disposes of the question of the statute of limitation, however, the question of the statute of limitation was not raised in the court below, nor is it covered by the assignment of errors, and hence cannot be considered on this appeal, even if it were applicable.
Griffith's Chancery Practice, sec. 149; Parkinson v. Mills, 159 So. 651.
Considerable comment is made in reference to this note transferred by the appellee to the deceased, and it is urged this note should be probated, or should have been probated. There is nothing in this note or endorsement showing any liability whatsoever from the deceased to the appellee and it is inconceivable to us, how she could have probated such a note, as she had no claim under any terms or provisions of the note, to probate. There is nothing in the note under any of its terms or by any of the endorsements whereby the deceased promised or obligated to pay anything, her claim against him resting merely in a parole agreement, then on the other hand the note having been transferred to the deceased, and the deceased having collected from Hackworth, the presumption was that the note was not in her possession, but was in the possession of Hackworth, after he had paid it, and of course, as a matter of evidence it was secured from him as evidence of the transfer by her to the deceased, of this note, in support of the oral agreement.
This note was in the possession and under the control of the appellee, and regardless of the regularity or irregularity, the legality or illegality, authority or want of authority, of the transfer of the said note by the appellee to the deceased Holesapple, for the simple reason that the evidence clearly shows that the transfer was made; that he accepted the transfer; that he took the note under the oral agreement; that he handled it under the oral agreement; that he collected the money under the oral agreement, and having thus handled the note and secured the proceeds of it, that he, himself, could not set up any such defense, and that the appellant, his legal representative, standing in his shoes and being in the position that he was, is liable to the appellee for the money had and received on the note under the oral agreement, and consequently estopped from challenging the right of the appellee to make the transfer, if she was in the wrong, or he was in the wrong, he cannot now set up any such defense, which was not raised in the court below nor in the assignment of errors and thus let his estate profit by his own wrong.
Broom's Legal Maxims, page 228; Cutter v. Powell, 6 Term Rep. 320; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Swan v. North British Australasian Co., Ltd., 7 Hurl. & N. 603; City Nat. Bank of Dayton v. Kusworm, 88 Wis. 188, 59 N.W. 564, 26 L.R.A. 48-68, 43 Am. St. Rep. 888; Hall et al. v. Hardaker, 55 So. 977, 61 Fla. 267, 13 C. J. 647, sec. 721.
There is nothing in this record to show whether the account was left in the hands of the clerk, under the statute, which is merely directory, or where it is, nor is there anything in the record to show what the issue is or what contest the appellant instituted in this action, but on this contest and on the issue made up, the court, under the evidence, very properly held that this is a valid subsisting claim against the estate of the deceased.
Mrs. Ruby Y. Holesapple-Dillman, appellee, presented for probate an account against the estate of Walter N. Holesapple, deceased, of which the appellant, First Columbus National Bank, was executor. The account as probated is as follows:
apple, Sr.
$ 1,720.00.
This account was probated and allowed for the amount thereof, one thousand sixty-five dollars, under the authority of section 1671, Code of 1930. The executor filed a contest of the claim under section 1678, Code of 1930. Upon the hearing of the evidence, the court allowed it as a valid claim against the estate, and the executor appeals to this court.
There are many objections to the claim, but we shall only state those which we think material to a decision of the case.
R. T Simpson, an attorney at law in Alabama, testified that the decedent and the claimant, Mrs. Dillman, came to his office, and that the decedent needed six hundred thirty-five dollars to clear up some trouble about an automobile; his son was being threatened with criminal prosecution by the "retention title folks in Arizona." Mrs. Dillman was executrix of her husband's estate then being administered in New Mexico or Arizona, she owned a note signed by Hackworth and payable to Dillman. Mrs. Dillman and Holesapple (meaning Holesapple, Jr., son of W. N. Holesapple) were...
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