In Re: On Suggestion Of Error, 31495

• Court: United States State Supreme Court of Mississippi
• Citation: 171 Miss. 886,158 So. 796
• Decision Date: 18 February 1935
• Docket Number: 31495
• Parties: On Suggestion Of Error.

158 So. 796

171 Miss. 886

On Suggestion Of Error.

No. 31495

Supreme Court of Mississippi

February 18, 1935

(Division A.)

EXECUTORS AND ADMINISTRATORS.

Statute authorizing court to allow amendment of defective or insufficient affidavit of claim against a decedent's estate at any [171 Miss. 887] time before estate was finally settled held not to authorize court to permit clerk to attach seal to his certificate more than six months after expiration of time for probating of claims (Code 1930, section 1672).

HON. N. R. SLEDGE, Chancellor.

Proceeding between Kit King, administrator, and Narcissa Jones. From the decree, the first-named party appeals. Affirmed.

On suggestoin of error.

Suggestion of error overruled.

For former opinion, see 158 So. 796.

L. G. Fant, Sr. & Jr., both of Holly Springs, for appellant.

The probate of the claim complies fully with the statute.

Mississippi Code 1930, section 1671; Merchants & Manufacturers Bank of Ellisville v. Fox, 165 Miss. 833.

The probate of the claim complies fully with the dictum in the case of Bank v. Fox, 165 Miss. 833.

One ground of objection sustained by the chancery court to the probate in the case at bar is that the certificate does not contain the words "this day exhibited to me." It is submitted that these words are not essential to a valid certificate, because the fact that the clerk certified to the copy as a true and correct copy of the original shows without doubt, without question, and as a matter of record, that the original was duly presented to him.

Davis v. Blumenburg, 107 Miss. 432, 65 So. 503.

The probate of the claim is valid.

Bank v. Fox, 165 Miss. 833; Mississippi Code 1930, 1672. [171 Miss. 888] Smith & Smith, of Holly Springs, for appellee.

Section 1674 of the Code of 1930 provides: "It shall be the duty of an executor or administrator to speedily pay the debts due by the estate out of the assets, if the estate is solvent, but he shall not pay any claims against the deceased, unless the same has been probated, allowed, and registered."

It has always been the rule in the state of Mississippi that the statute as to the method of probating claims against the estates of dead people shall be strictly construed against creditors.

Jennings v. Lowrey & Berry, 112 So. 694; Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Walker v. Nelson, 87 Miss. 268, 39 So. 809; Saunders v. Stevenson, 94 Miss. 676, 47 So. 783; Lehman v. Powe, 95 Miss. 446, 46 So. 622; Lehman v. George, 99 Miss. 798, 56 So. 167; Cudahy & Co. v. Miller, 103 Miss. 435, 60 So. 574; McMahon v. Foy, 104 Miss. 309, 61 So. 421; Stephens v. Dunlap, 108 Miss. 690, 67 So. 160; Parsons v. Griffin, 112 Miss. 643, 73 So. 624; Levy v. Bank, 124 Miss. 325, 86 So. 807; Manufacturers Bank of Ellisville v. Fox, 165 Miss. 833, 147 So. 789.

Where a statute has been construed by the highest court and afterwards re-enacted in substantially the same terms, the Legislature by such re-enactment adopts along with the statute, such construction.

White v. Ill. Cent. R. R. Co., 99 Miss. 651, 55 So. 593; Shotwell v. Covington, 69 Miss. 735, 12 So. 261; Wetherbee v. Roots, 72 Miss. 355, 16 So. 902.

Chapter 304 of the Laws of 1934, significantly enough re-enacts section 1761, without change except in one particular. That particular amendment is manifestly designed to meet the decision of this honorable court in Stephens v. Dunlap Mercantile Company, 112 Miss. 524, 73 So. 570, which held that without the endorsement as to the probating, allowance, and registering, of the claim endorsed...