McDowell v. Minor

• Decision Date: 06 June 1932
• Docket Number: 29872
• Citation: 142 So. 491,169 Miss. 339
• Court: Mississippi Supreme Court
• Parties: MCDOWELL et al. v. MINOR

142 So. 491

169 Miss. 339

MCDOWELL et al. v. MINOR

No. 29872

Supreme Court of Mississippi, Division B

June 6, 1932

Suggestion Of Error Overruled September 26, 1932.

1. EXECUTORS AND ADMINISTRATORS. Administrator, whose individual claims were barred because not timely filed, could not have claims for items accruing before decedent's death allowed under guise of accounting (Code 1930, section 1677).

It appeared that, on remand of case, administrator sought to get advantage of his claims, disallowed on former appeal because not probated within six months, by filing accounting as his deceased mother's agent for period of six years before her death, her estate then being administered, thus getting credit for same accounts which had been disallowed on former appeal.

2. PARENTS AND CHILD.

Son's agency for mother ceased on her death, and he could not recover under agency contract for services rendered thereafter.

HON. R W. CUTRER, Chancellor.

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

Accounting by D. G. Minor, as administrator of the estate of his mother Mrs. K. S. Minor, deceased, in which administrator filed individual claims, opposed by Mrs. J. McDowell and others. From an adverse judgment contestants appeal. Reversed and remanded with directions.

See, also, 158 Miss. 788, 131 So. 278; 159 Miss. 572, 132 So. 565.

Reversed and remanded.

L. T. Kennedy, of Natchez, for appellants.

The death of the principal terminated the agency, and when the person who had theretofore acted as agent became administrator, his duties and rights as agent terminated and his rights and duties as administrator began.

It is the statutory duty of an administrator to speedily collect all debts due the intestate and therefrom to pay all probated claims, expenses of the administration and settle the estate.

The common law doctrine which permitted an administrator to retain assets of the estate in the payment of his own claim is superseded by section 2109 of the Code of 1906, which prevents retainer and provides that the claim of an administrator shall be probated and passed by the court before it can be paid.

The administrator has no right to pay, nor to take credit in his final account for the payment of claims against the estate arising during the life of the intestate unless the same is probated and registered as required by law.

The administrator cannot pay a claim unless probated.

The administrator cannot expend money as such during the administration except by order of court.

Engle & Laub and L. A. Whittington, all of Natchez, for appellee.

We most respectfully say to the court that when this matter was referred back to the lower court it was not referred back for any other purpose than to determine whether or not if D. G. Minor, individually and as agent of his mother, should account only for the three year period instead of the eight year period would it be to his advantage and to the disadvantage of the estate.

McDowell et al. v. Minor, 131 So. 278, 158 Miss. 788.

The law allows a man to be honest, and to pay an honest debt, however stale and ancient it may be. He may interpose the statute of limitations, but he may waive it also. The law does not compel him to resort to this defense, nor can others insist upon it for him.

Lewis v. Buckley, 73 Miss. 58.

Where there shall have been mutual dealings between two or more persons, and one or more of them shall die before an adjustment of such dealings, the lawful demands of such parties against each other shall be a good payment, or set-off, to the amount thereof, notwithstanding the estate of one or more of such deceased persons shall be insolvent, and only the balance due shall be the debt.

Section 544, Hemingway's Code of 1927; Section 539, Code of 1930; Receivers, etc., Bank v. Gas Light Co., 23 N. J. Law 283, 304; Herschel v. Barnet, etc., 27 L. R. A. (N. S.) 812.

Under the ancient common law rule, the naming of an executor served to extinguish any claim the estate had against him, on the theory that by naming such debtor the executor of his estate, a testator voluntarily destroyed such debt since he destroyed the means of collecting it.

11 R. C. L. 113 et seq.; sec. 2040, Code of 1906.

OPINION

Ethridge, P. J.

In McDowell v. Minor, 158 Miss. 360, 130 So. 484, we held that administrators must publish notice to creditors of the estate to probate all claims against estates...