Jennings v. Lowery & Berry

• Decision Date: 25 April 1927
• Docket Number: 26203
• Citation: 147 Miss. 673,112 So. 692
• Parties: JENNINGS et al. v. LOWERY & BERRY. [*]
• Court: Mississippi Supreme Court

112 So. 692

147 Miss. 673

JENNINGS et al. v. LOWERY & BERRY. ^[*]

No. 26203

Supreme Court of Mississippi

April 25, 1927

Suggestion of Error Overruled May 30, 1927.

(In Banc.)

1. EXECUTORS AND ADMINISTRATORS. Law providing manner for filing claims against estates of decedents should be strictly construed against creditors (Hemingway's Code, section 1774).

Code 1906, section 2106 (Hemingway's Code, section 1774) providing manner in which claims of creditors shall be registered, probated, and allowed against the estates of decedents, should be strictly construed against creditors.

2. LIMITATION OF ACTIONS. Courts, in construing statutes of limitation, may consider reasonableness of result and practical effect of different interpretations.

In construing statutes of limitations, the courts may consider the reasonableness of result of a particular interpretation and the practical effect of the adoption of a different interpretation.

3. EXECUTORS AND ADMINISTRATORS. Filing proof of publication of notice to estate creditors is necessary to set six-month statute of limitations in motion (Hemingway's Code section 1771, as amended by Laws 1920, chapter 302, section 1775, as amended by Laws 1920, chapter 303).

Filing of proof of publication of notice, requiring persons having claims against estate of deceased to probate and register claims within six months, in accordance with Code 1906 section 2103 (Hemingway's Code, section 1771), as amended by Laws 1920, chapter 302, is necessary in order to set in motion limitations under Code 1906, section 2107 (Hemingway's Code, section 1775), as amended by Laws 1920, chapter 303, since requirement for filing such proof of publication is mandatory.

4. EXECUTORS AND ADMINISTRATORS. Limitation against claims of estate creditors is not set in motion, unless proof of publication of notice to creditors is made within six months from first publication (Hemingway's Code, section 1775 as amended by Laws 1920, chapter 303, section 1771, as amended by Laws 1920, chaper 302).

Limitation of six months under Code 1906, section 2107 (Hemingway's Code, section 1775), as amended by Laws 1920, chapter 303, is not set in motion against claims of creditors of estate, unless proof of publication of notice in accordance with Code 1906, section 2103 (Hemingway's Code, section 1771), as amended by Laws 1920, chapter 302, is filed within six months after first publication, of notice.

ETHRIDGE, J., and SMITH, C. J., dissenting.

HON. HARVEY McGEHEE, Chancellor.

APPEAL from chancery court of Tallahatchie county HON. HARVEY MCGEHEE, Chancellor.

Suit by Lowery & Berry against Mrs. Dollie W. Jennings and others, executors and trustees under the will of H. J. Jennings, deceased. From the decree, defendants appeal, and complainants cross-appeal. Affirmed on both direct and cross-appeals.

Affirmed on both direct and cross-appeal, and remanded.

Fred H. Montgomery, for appellants.

Section 1775, Hemingway's Code, as amended by chapter 303, Laws of 1920, creates a short statute of limitations, and has been so uniformly construed by the court. Stevens v. Dunlap Mill Co., 112 Miss. 524; Lehman v. George, 99 Miss. 798; Cheairs v. Cheairs, 81 Miss. 662.

It was not contended by the complainants in the court below that the attempt upon the part of complainants to probate the claim on October 24, 1923, was valid, and that after the expiration of six months from the date of the first publication of notice to creditors was enforceable. I apprehend there will be no departure from the status assumed in the lower court, in presenting the case on appeal. At any rate, any other contention would be manifestly untenable. Therefore, after February 15, 1924, the claim not having been probated in the manner prescribed by statute it ceased to be a claim against the estate.

Whatever the personal representatives of the deceased may have thought of the merits of the claim otherwise, they were prohibited by statute from making payment thereof, and the court was without power to order the payment of the claim. If the personal representatives had assumed authority to pay the claim, the court on final accounting would have been required to charge the amount so paid to them. Section 1773, Hemingway's Code; Lehman v. Powe, 95 Miss. 446; Stevens v. Dunlap Mill Co., 112 Miss. 534.

If suit had been filed against the personal representative on this claim, at any time after February 15, 1924, six months after date of first publication of notice to creditors, the failure to cause the claim to be properly probated, registered, and allowed, would have been a complete bar to the claim. The personal representatives would have had no discretion in respect to interposing the plea of the statute of limitations. They are bound under the statute so to do, and a failure to interpose the plea would be at their own peril, and not at the peril of the estate.

Lowrey & Lamb and R. L. Cannon, for appellees.

The proof in this case wholly fails to show that the notice to creditors was ever published, for three consecutive weeks as required by the statute, and if not, there was no bar to the right to amend the claim independent of the Act of 1926. Stevens v. Dunlap, 108 Miss. 690, 73 So. 570. The publication of notice according to law was not established and the court was unwarranted in the finding that it was so published. Boutwell v. Bank, 118 Miss. 50, 79 So. 1.

Even if the court was warranted in the finding that the notice was published according to law, there is no pretense that any proof of publication was made until after proper probate of the claim was made on February 17th and no proper proof of publication was made or filed until this motion to amend was being heard and tried by the court.

The bar of the probate does not attach until this notice is published for three consecutive weeks and proof filed with the clerk. Code 1906, section 2103, Hemingway 1771; Marshall v. John Deere Plow Co., 99 Miss. 284, 54 So. 948; Oliver v. Baird, 90 Miss. 718.

Even if the proof of publication can be filed while the motion to amend is being heard and before it is decided by the court so as to put the bar of the statute into effect and warrant the court in refusing to allow the amendment, it is shown by the record in this case that on February 26th, Lowrey & Berry had made proper proof of their claim and had it allowed and registered properly by the clerk and at that time no pretense had been made of filing any proof of publication of notice to creditors although it had been about two years and a half since the publication of notice.

Even if the proof of publication was made according to law and if the filing of the proof can be done after the second probate and after the motion to amend so as to retroact and bar the claim which was not barred when the second probate was made and when the motion to amend was made, still the court was entirely warranted under the circumstances developed by the proof in this case in allowing the amendment independent of the Act of 1926.

Our view is that if this proof is filed within six months after the first publication this bars the right to probate claims, but if it is not filed within the six months then the right is not barred until it is filed.

Compare Code 1906, section 818 (H. 606) providing for the enrollment of judgments of the circuit court and requiring the clerk to enroll all judgments of that court within twenty days of the adjournment of the terms. Section 819 (H. 607) provides that the judgment so enrolled shall bind the property of the defendants and be a lien upon it from the rendition of the judgment.

In Johnson v. Cole, 110 So. 428, this court has held that if the judgment is not enrolled within the twenty days the lien does not date back to the rendition of the judgment but attaches only from the date of the enrollment.

While the statute on probates does not specifically say that the proof of publication shall be made immediately or within six months in order that the right to probate may bar, within six months from the first publication, this is clearly the intent and purpose of the statute, and our court has expressly so held in the cases above cited to the effect that section 2103 must be complied with in all respects in order to put the limitation into effect, and that the statute limiting the time for probate cannot be put into effect in any other way.

Wilson, Armstrong & Zates, amicus curiae, for appellee.

Is the filing of the proof of publication a necessary step to bar a debt within six months or is it a mere precaution to preserve the evidence of a notice? The plan carried out is to be taken by steps and it has always seemed that each step must comply substantially with every provision of the statute before it has the effect of requiring the next step to be taken on the penalty of forfeiting a just debt. The statute requires four things to be done with this notice. It must be published in the newspaper for three consecutive weeks and then the proof of the publication must be filed with the clerk.

The statute requires proof of publication to be filed with the clerk just as much as it requires the second and third publication. It has quite as much to do with it as do the second and third publications because, as it will be later shown, the bar of the statute begins to run from the first publication and not from the second or third or from the filing of the proof. So that it seems the first publication sets the statute in motion, to be ended in six months from the first publication; but, with the proviso that this first publication which would start the statute is only effective in the event that it is followed by a second and a third weekly publication and also by the filing of...