McMahan v. Foy

• Decision Date: 31 March 1913
• Citation: 104 Miss. 309,61 So. 421
• Court: Mississippi Supreme Court
• Parties: W. S. MCMAHAN v. M. P. FOY, ADMINISTRATOR

61 So. 421

104 Miss. 309

W. S. MCMAHAN v. M. P. FOY, ADMINISTRATOR

Supreme Court of Mississippi

March 31, 1913

March 1913

APPEAL from the chancery court of Newton county, HON. SAM WHITMAN JR., Chancellor.

Suit by W. S. McMahan against M. P. Foy, administrator of the estate of D. J. McDonald, deceased. From a judgment for the defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

R. D Cooper, for appellant.

The affidavit made by the appellant and attaching the receipt as it is described by the clerk thereto satisfied the clerk that the claimant had done all that the law required him to do as he understood the law. It is true he, the clerk, did not require that the original receipt should be filed in his office, but a copy of the same. Now the statue does not state or use the word "original," but it does state that he shall present to the clerk the written evidence of his claim, if any. What is the written evidence of the claim, the receipt, a copy of the written evidence is the written evidence. It is true that the copy could not be introduced in court over the objection of the opposing party, without showing the reasons therefor as prescribed by the law. On the trial of this case the original receipt was introduced. I contend that there is nothing on this question about the original. I maintain that the administrator could have satisfied himself on this line; if this was his only objection to paying the claim, the appellant would have produced the original had it been requested. The appellant did do so in court without the request of the appellee. No one doubts the signature of D. J. McDonald.

Suppose this was the only question to the claim, that because he filed with the clerk a copy of the receipt and not the original, and suppose the claimant had presented to the administrator the original receipt in order to entirely satisfy him that he was doing the right and honest thing and suppose the administrator had paid the claim without contest would the chancellor have given the administrator credit for this item? Admitting that the administrator had required the production of the original receipt and not a copy of same, before doing so. But the appellee must have been satisfied along this line or at least could have been if it had been desired.

M. P. Foy, for appellee.

Probation of a copy of any kind of a claim will not justify the administrator in paying same, although the original might be a valid claim and the probation might be sufficient, but the original evidence must be presented to the clerk for probation and thereby to the administrator for an examination and inspection to enable him to decide whether or not it is such a legal demand against said estate as would justify him in paying same.

Section 2106 of the Code says: "Any person desiring to probate his claim should present to the clerk, a written evidence thereof, if any, or if the claim be a judgment or decree, a duly certified copy thereof, or if there be no written evidence thereof, an itemized account, or statement of the claim in writing signed by the creditor."

We underst...