Foster v. George Schaffer
| Decision Date | 04 April 1904 |
| Citation | 36 So. 243,84 Miss. 197 |
| Court | Mississippi Supreme Court |
| Parties | THOMAS R. FOSTER v. GEORGE SCHAFFER, ADMINISTRATOR |
March 1904
FROM the chancery court of Warren county. HON. WILLIAM P. S VENTRESS, Chancellor.
Foster appellant, propounded a claim for probate against the estate of Frank A. Schmidt, deceased, of which estate, Schaffer appellee, was administrator. The claim was in writing and in these words:
To this written statement Foster made the affidavit required by statute, Code 1899, § 1932.
The administrator contested this claim, and by agreement it was submitted to auditors. The auditors' report sets forth that the claim was not properly and legally registered, probated, and allowed, because it was not itemized in conformity to the above section, Code 1892. They further reported that under sec. 542 of said code, authorizing amendments generally in the chancery court, it should be amended, and it was allowed by them, when amended, for the sum of $ 225. Exceptions were filed by the administrator to the auditors' report to the effect that they had erred in finding that the account could be amended by itemizing it. These exceptions were sustained by the court, and a decree rendered disallowing the claim, and Foster appealed to the supreme court.
Reversed and remanded.
Smith, Hirsh & Landau, for appellant.
The case of Cheairs v. Cheairs, 81 Miss. 662, does not decide the point in controversy. In that case there was a fatal defect in the affidavit, and there was no motion made to amend, the creditor who propounded the claim resting solely upon the affidavit and made no motion to amend the affidavit.
Sec. 1932 of the code uses this language: "If there be no written evidence thereof, an itemized account or a statement of the claim in writing signed by the creditor." We respectfully submit, and the court, we think, will take judicial knowledge of this, that lawyers do not in their practice keep itemized accounts, and do not enter from time to time on their books charges for each consultation, and about what subject the consultation was had with the client, and we submit that the words "itemized account" cannot fairly be applied to the claim of a lawyer against the estate of his deceased client, and that the claim as presented was good originally.
Brunini & Hirsh, for appellee.
The case of Cheairs v. Cheairs, 81 Miss. 662, is decisive of the point. Sec. 1932 of the code requires an itemized account, and Foster's claim was not itemized.
In the Cheairs case the court expressly asks itself this question, "Is sec. 1932 mandatory?" and it replies in the affirmative. We submit that if sec. 1932 is mandatory in whole, it must be as to any one of its constituent parts. If the affidavit be mandatory, then the itemized account must also be mandatory. If the one be "an indispensable jurisdictional prerequisite," then the other must also be. If this be true, then the registration, probation, and allowance of the account by the clerk which is not itemized is void.
The probated claim...
To continue reading
Request your trial
-
Rice Stix Dry Goods Co. v. Monsour
...Company v. Brewer, 133 Miss. 9; Pipes v. Norton, 47 Miss. 61; Ellsworth v. Busby, 160 So. 574; Rogers v. Rosenstock, 77 So. 958; Foster v. Shaffer, 36 So. 243; Cheairs Cheairs, 33 So. 414, 81 Miss. 662; Jennings v. Lowry & Berry, 112 So. 692; Lehman v. Powe, 95 Miss. 456; McMahon v. Foy, 61......
-
Talbert v. Ellzey
... ... authority to do ... A case ... involving services to decedent was Foster v ... Shaffer, 84 Miss. 197, 36 So. 243, 244, where the claim ... probated was: 'Estate of Frank ... ...
- Jones v. State
-
Voyles v. Robinson
... ... the Georgia court. (2) The claims could be perfected by ... amendment. 11 R. C. L. 194; Foster v. Schaffer, 84 ... Miss. 197, 36 So. 243; Lehman v. Powe, 95 Miss. 446, ... 48 So. 622; Duffy v ... ...