Persons v. Griffin, 18719

CourtUnited States State Supreme Court of Mississippi
Citation73 So. 624,112 Miss. 643
Decision Date22 January 1917
Docket Number18719
PartiesPERSONS v. GRIFFIN

73 So. 624

112 Miss. 643

PERSONS
v.
GRIFFIN

No. 18719

Supreme Court of Mississippi

January 22, 1917


Division B

APPEAL from the chancery court of George county, HON. W. M. DENNY, Jr., Chancellor.

Proceedings for the allowance of the claim of T. W. Griffin against the estate of M. Nolan deceased. From a decree allowing plaintiff's claim, T. W. Person, temporary administrator, appeals.

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

Decree reversed.

O. F. Moss, for appellant.

It is well settled that section 1932, Code of 1892, section 2106, Code of 1906, regulating the probate, allowance and registration of claims against the estate of decedents is mandatory, and an affidavit to a claim which fails to conform to the requirements set out in the statute, is fatally defective and gives no jurisdiction to allow the claim. Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414.

It will be noted from the record, page 3, that J. A. De Monbrun, agent for the claimant, signed and made affidavit to the account in question, while this court in the case of McWhorter v. Donald, 39 Miss. 779, 80 Am. Dec. 97, Walker v. Nelson, 39 So. 809, and Saunders v. Stephenson, 47 So. 783, has held that it is essential to the validity of the probate of a claim against a decedent, that the creditor himself should make the affidavit required by law, and that an affidavit by an agent of the creditor will not do.

It is true that the claimant in the case at bar tries to make some excuse for not making the affidavit himself, but this court in the Saunders case above cited said:

"The affidavit upon which the note sued on was probated was not made by the creditor, but by her husband as her agent. This brings the question squarely within the holding in this court in McWhorter v. Donald, 39 Miss. 779, 80 Am. Dec. 97. It is true that appellee here offers some excuse for not making the affidavit which the statute requires, and also true that this excuse was wanting in the McWhorter case; but the decision in that case is based upon the peremptory requirement of the statute, a departure from which is fatal." Citing Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Walker v. Nelson, 87 Miss. 268, 39 So. 809.

This court in all the cases cited above was construing section 2106 of the Mississippi Code of 1906, which requires that the creditor desiring to probate his claim against the estate of a decedent must sign the claim and make affidavit, etc.

It appears from page 2 of the record that the administrator's notice to creditors to file and probate their claims was first published on the 19th day of December, 1913, and under and by virtue of section 2107, Code of 1906, all claims not registered, probated and allowed according to law within one year from date were forever barred; but the lower court regardless of this section of the Code and long after the claim in question had become barred by the statute of limitation and directly in the face of the decision of this court in the case of Lehman v. George, 56 So. 167, on motion of appellee, allowed and permitted the claimant to amend the affidavit to his claim, as shown by pages 10 and 11 of the record. In the Lehman case it is held that a claim against a decedent's estate not having been probated in the manner provided by law, so that its registration did not stop the running of the statute, the probation cannot on the application after the claim is barred by limitations, be amended, and that to hold otherwise would result in the nullification of section 2107 of the Code.

This court in the case of Cudahy Packing Company v. Miller's Estate, 60 So. 574, held that an affidavit attached to a claim presented to an executor, which fails to allege that the claim "is not usurious," as required by section 2106, Code of 1906, is insufficient, although it may appear, from an inspection of the claim, that it "is not usurious." In the case at bar appellee sets up in his answer to the petition of contest that an inspection of the claim here in question shows that the same "is not usurious" and that the omission of the word...

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21 cases
  • Rice Stix Dry Goods Co. v. Monsour, 32731
    • United States
    • United States State Supreme Court of Mississippi
    • May 10, 1937
    ...there is a statute on the subject, it prevails. Jennings v. Lowry & Berry, 112 So. 692; McMahon v. Foy, 61 So. 421; Persons v. Griffin, 73 So. 624; Cheairs v. Cheairs, 33 So. 414, 81 Miss. 662; Lehman v. Powe, 95 Miss. 456. The court had held statutes governing the probate of claims against......
  • Yates' Estate v. Alabama-Mississippi Conference Ass'n of Seventh-Day Adventists, Inc, 32844
    • United States
    • United States State Supreme Court of Mississippi
    • October 25, 1937
    ...49 So. 622; McMahan v. Foy, 104 Miss. 309, 61 So. 421; Stevens v. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160; Persons v. Griffin, 112 Miss. 643, 73 So. 624; Levy v. Bank & Trust Co., 124 Miss. 325, 86 So. 907; Jennings v. Lowery & Berry, 147 Miss. 673, 112 So. 692; Wilson v. Yandell, ......
  • Carothers v. Love, Superintendent of Banks, 30963
    • United States
    • United States State Supreme Court of Mississippi
    • March 19, 1934
    ...and no decree entered against the estate of Mrs. Whitesides for any part of the claim so attempted to be probated. Persons v. Griffin, 112 Miss. 643, 73 So. 624; Jennings et al. v. Lowry & Berry, 147 Miss. 673, 112 So. 692; Merchants & Mfg. Bank of Ellisville v. Fox, 147 So. 789. The exact ......
  • Carothers v. Love, 30963
    • United States
    • United States State Supreme Court of Mississippi
    • February 5, 1934
    ...and no decree entered against the estate of Mrs. Whitesides for any part of the claim so attempted to be probated. Persons v. Griffin, 112 Miss. 643, 73 So. 624; Jennings et al. v. Lowry & Berry, 147 Miss. 673, 1.12 So. 692; Merchants & Mfg. Bank of Ellisville v. Fox, 147 So. 789. The exact......
  • Request a trial to view additional results

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