McDowell v. Minor

• Decision Date: 20 October 1930
• Docket Number: 28297
• Citation: 158 Miss. 360,130 So. 484
• Court: Mississippi Supreme Court
• Parties: MCDOWELL et al. v. MINOR

130 So. 484

158 Miss. 360

MCDOWELL et al. v. MINOR

No. 28297

Supreme Court of Mississippi

October 20, 1930

Division B

1. EXECUTORS AND ADMINISTRATORS. Administrator is required to speedily publish notice to creditors requiring probate of claims within six months (Hemingway's Code 1927, sections 1847, 1849, 1853).

Hemingway's Code 1927, section 1849, makes it administrator's duty to speedily pay debts due by estate, provided he shall not pay any claim until probated, and section 1853 requires administrator to probate individual claim in same manner other claims are probated. Section 1847 makes it administrator's duty to publish notice to creditors requiring all persons having claims to probate them within six months.

2. APPEAL AND ERROR.

Supreme court must assume administrator published notice to creditors speedily in accordance with duty, where record did not show when notice was published (Hemingway's Code 1927, section 1847).

3. EXECUTORS AND ADMINISTRATORS.

Where administrator did not file his individual claim within six months after notice to creditors should have been given probate of claim was nullity (Hemingway's Code 1927 sections 1847, 1849, 1853).

4. EXECUTORS AND ADMINISTRATORS.

Administrator could not delay in his duty to make prompt publication of notice to creditors and thereafter take advantage of delay in his own behalf (Hemingway's Code 1927, section 1847).

HON. R W. CUTRER, Chancellor.

APPEAL from chancery court of Adams county, HON. R. W. CUTRER, Chancellor.

D. G. Minor filed probate of his individual claim against estate of his mother, Mrs. K. S. Minor, deceased, of which he was administrator, and claim was contested by Mrs. J. McDowell and others. The claim was allowed in part, and contestants appeal. Reversed and remanded.

Reversed and remanded.

L. T. Kennedy and W. C. Martin, both of Natchez, for appellant.

A party paying a debt due by a decedent in his lifetime cannot without showing by independent proof that such payment was made at the request of the decedent, probate the account so paid as an account in his own favor and by his own affidavit.

McWhorter v. Donald, 39 Miss. 779; Union & Planters Bank v. Ryles, 94 So. 796.

The statement of the claim is not itemized.

If appellee had paid said taxes by agreement with his mother, or at her request, the tax receipt was and is the only evidence and is the written evidence of such fact.

Sec. 4322, Code of 1906, Sec. 8241 of Hemingway's Code 1927.

Engle & Laub, of Natchez, for appellee.

The issues and questions involved in this particular appeal are nothing more or less than moot questions.

It is admitted that the claim was not probated for the purpose of having the same allowed and paid out of the estate, but was probated solely out of an abundance of precaution against technical objections that might be made in undertaking to assert the matters involved in such claim in statement of mutual indebtedness.

Sec. 544, Hemingway's Code of 1927, sec. 530, Hemingway's Code of 1917, sec. 747, Code of 1906.

Argued orally by L. T. Kennedy and W. C. Martin, for appellant, and by S. B. Laub, and L. A. Whittington, for appellee.

OPINION

Griffith, J.

Appellee D. G. Minor, was appointed, administrator of the estate of his mother, Mrs. K. S. Minor, deceased, on February 18, 1926. On the 20th day of January, 1927, or approximately eleven months after his appointment, appellee probated his individual claim against said estate in the sum of ten thousand three hundred fifty-two dollars and nineteen cents, which claim, being contested, was allowed by the court to the...