Lehman v. Powe

• Decision Date: 14 June 1909
• Docket Number: 13,887
• Court: Mississippi Supreme Court
• Parties: MALINE LEHMAN ET AL. v. AARON T. POWE ET AL

49 So. 622

95 Miss. 446

MALINE LEHMAN ET AL. v. AARON T. POWE ET AL

No. 13,887

Supreme Court of Mississippi

June 14, 1909

FROM the chancery court of Forrest county, HON. THADDEUS A. WOOD Chancellor.

Mrs Lehman and others, composing the partnership of A. Lehman &amp Company, appellants, creditors of the estate, contested the claims of Powe and E. B. George, appellees, probated against the insolvent estate of T. J. George deceased. The proceeding was based on Code 1906, § 2108, authorizing any one interested, including any creditor, to contest any claim probated against the estate of a decedent. From a decree in favor of the appellees the contestants appealed to the supreme court. The opinion of the court states the facts.

Reversed.

Stevens Stevens & Cook, for appellants.

The appellee, Powe, is not entitled to compensation for any work done within the period beginning January 1, 1901, and ending October 11, 1903, because such work was done more than three years prior to the death of T. J. George, and the claim therefore is barred by the statute of limitation. Furthermore, the claim is feigned and fictitious. After appellants filed a contest of his claim it thereupon devolved upon Powe to establish the claim by competent evidence regardless of the probating of the claim. That a claim has been probated in proper form amounts to nothing in aid of its validity where a contest of the claim has been made in the method prescribed by law by parties interested in the estate. North v. Lowe, 63 Miss. 31; Foster v. Shaffer, 36 So. 243; Allen v. Hillman, 69 Miss. 225.

Powe failed to establish his claim before the master. The evidence offered by him in such behalf was clearly incompetent. As regards the claim of Powe for $ 240, wages, in probating his claim Powe did not ask that the $ 240 or any part whatever of his claim be allowed as a preference. No reference to any preference claimed is shown of record until the master, Mr. Currie, reported to the court that Powe had asked of him that the $ 240 be allowed as a preference. Powe evidently made the request verbally. So far as the record shows there was no evidence taken showing why the claim should be a preferred one. Certainly no decree could be rendered by the court below allowing the claim as a preference in the absence of proof in regard to it. We have found no law which will warrant the allowance of the claim as a preference. And in allowing it as such the court below erred. Powe was an ordinary clerk in the store of the decedent, and simply because he clerked in the store as an employe he claims a preference over other honest creditors of the decedent. It should be borne in mind that Powe has not made the claim and established it by evidence on the basis that he be allowed preference for labor performed for a short period within the year of the death of decedent. But even if he had, there is no law giving such claimant preference over other creditors of a decedent's estate. A clerk in a general mercantile business is not entitled to any priority whatever in the payment of his wages where the owner of the business has died owing him such wages and also owing general debts to other persons in no wise concerned in the operation of the business. All debts incurred by the decedent in his dealings with individuals stand in like status within the purview of the law, and hence the action of the court, with reference to this claim of Powe's, was error. 23 Am. & Eng. Ency. Law (2d ed.) 1120; Le Holte v. Boyet, 85 Miss. 637.

The claim of E. B. George, appellee, was not properly probated under Code 1906, § 2106. The cancelled checks were not sufficient evidence of the claim. Cheirs v. Cheirs, 81 Miss. 662, 33 So. 414; Foster v. Shaffer, 84 Miss. 197, 36 So. 243; McWhorter v. Donald, 39 Miss. 779. The cancelled checks disclose no liability upon the part of the estate of the deceased, and would not have been sufficient whereon to base a suit in a court of law against the deceased in his lifetime. That part of Code 1906, § 2106, consisting of the words, "the written evidence thereof," manifestly has reference to such obligations as promissory notes, bills of exchange, unpaid checks and other written promises to pay money. Had T. J. George executed the checks in question to E. B. George, instead of E. B. George's executing them to T. J. George, and had T. J. George died before the checks were honored or paid by the banks on which they were drawn, then probably they would have met the requirements of the statute when filed for probate with the clerk of the court. But we are convinced that the checks, cancelled as they are, showing payments by the banks but not to whom, are not sufficient of themselves to indicate that the estate of T. J. George is due anything thereon to E. B. George. Greenburg v. Massey, 90 Miss. 121.

John T. Hanley and A. A. Hearst, for appellees.

The only objection made by counsel for appellants to the claim of E. B. George for $ 600 is that the claim was not probated in accordance with the requirements of Code 1906, § 2106, in that he did not file the written evidence of the claim, if any there be, or if the claim be a judgment, a duly certified copy thereof, or if there be no written evidence thereof, an itemized account or a statement of the claim in writing signed by himself, as provided by said section.

It is not contended by appellees that the claim of E. B. George is a judgment, nor can it be contended that the claim is an open account which must be itemized and signed by claimant. E. B. George did file the written evidence of his claim, the same being the two checks referred to, and these checks constitute a sufficient Written evidence of his claim to meet the requirements of Code 1906, § 2106.

All that is required by the Code section is that the claimant file some written evidence of his claim. It does not require that the claimant file conclusive evidence of his claim, nor does it pretend to require the degree of dignity to which the written evidence must attain; all that is required by the statute is some written evidence of debt.

The claim of E. B. George consists of two checks, one for $ 500 payable to E. B. George and drawn by Jas. W. Harper, asst. cashier of the First National Bank of Hattiesburg, Miss., on the Germania National Bank of New Orleans, and endorsed by E. B. George and T. J. George; and another check for $ 100 payable to T. J. George and drawn by E. B. George and endorsed by T. J. George. Both of these checks are shown on their face to have been paid by the respective banks on which they were drawn. These paid checks each amount to a receipt showing money had and received, and are sufficient written evidence of indebtedness to fulfil the requirements of the statute. In fact, so far as the record discloses, they are the only written evidence of the claim and are indeed the very instruments required to be filed by the statute referred to. Counsel for appellants do not object to the sufficiency of the evidence in proof of this claim, but say such evidence was inadmissible and that the court below erred in admitting the same because the claim was not properly probated. There is, therefore, no objection to the sufficiency of the proof of the claim. The testimony of the appellee Powe and others sufficiently establishes the indebtedness, and both witnesses state that these checks represent a cash loan of money by E. B. George to T. J. George, deceased.

The evidence in support of this claim of E. B. George is overwhelming and shows conclusively that the claim is for money loaned by the said appellee to T. J. George, and that the claim was just and was filed in good faith. We insist that the probate is sufficient under the statute, and the claim was properly allowed by the court below and ought to be allowed on this appeal.

As to the claim of appellee A. T. Powe against the estate of T. J. George, deceased, we call attention to the fact that appellants made no objection to the probating of the claim of A. T. Powe but directed their objections to the proof of the claim and the action of the court below in allowing the same. In answer to the objection of appellants that this claim is barred by limitation we say that the said appellee had a right to, and did apply the items as payment as shown on his account, first to the payment of the said balance of $ 152.50 and applied the balance of the payments to the first month of his salary, beginning Jan. 1, 1901, and to each successive month' salary thereafter until all of these payments had been thus applied, and the result of this application is that all of the months' salary which appear to have been barred have been fully paid, and the balance for which the claim is propounded is for salary which is not barred by the statute of limitations.

We insist that Powe had a right to apply the payments to the oldest, items on his account, and he was warranted by the law in doing so. We cannot state the rule of the application of the payments more clearly than is stated by the auditors, in their report to the court below, which is in part in the following language: "As to the claim of A. T. Powe for a balance of $ 1,329.58 for services rendered, we find that the items of the account are sustained by the proof, and further that, while certain items of credit appear to be barred by the statute of limitations, yet by the rule of application of payments to the oldest item of debt, a sum considerably larger than the balance claimed is not barred by the statute of limitations, and we therefore recommend that said claim be allowed in full." This is a clear statement of the rule and is sustained by our own supreme court in the case of Fletcher v. Gillan, 62 Miss. 8. We feel warranted, therefore, in saying that no part of...