Rice Stix Dry Goods Co. v. Monsour
| Decision Date | 10 May 1937 |
| Docket Number | 32731 |
| Citation | 174 So. 63,178 Miss. 621 |
| Court | Mississippi Supreme Court |
| Parties | RICE STIX DRY GOODS Co. v. MONSOUR |
1. EXECUTORS AND ADMINISTRATORS.
Account filed which failed to itemize merchandise or services for which account was incurred and contained nothing but record of charges, credits, and balances held insufficient to constitute claim against estate, since it furnished no basis for determining whether account was legal, or correct notwithstanding affidavit was legal in form.
2. EXECUTORS AND ADMINISTRATORS.
Where account was so vague, indefinite, and uncertain, because of failure to itemize anything but charges, credits, and balances, as to be insufficient to constitute claim against estate, motion to amend filed after expiration of statutory period for probation of claims was properly overruled.
3. EXECUTORS AND ADMINISTRATORS.
Creditors having claims against deceased persons must strictly comply with the law.
4. EXECUTORS AND ADMINISTRATORS
Rule that defective affidavit to claim against estate made in good faith and registered and allowed by clerk may under statute be amended at any time before estate is finally settled applies only to affidavit and does not apply to claims which do not comply with the law (Code 1930, sec. 1672).
HON. A B. AMIS, SR., Chancellor.
APPEAL from the chancery court of Lauderdale county HON. A. B. Amis, SR., Chancellor.
Claim filed by the Rice Stix Dry Goods Company against Mrs. Linda K. Monsour, executrix. From a judgment of the chancellor overruling motion to amend claim and affidavit, and holding claim void, claimant appeals. Affirmed.
Affirmed.
Neville & Minniece, of Meridian, for appellant.
Appellant should have been permitted to amend its proof of claim by attaching a more fully itemized statement of account. It is the policy of the law in Mississippi to allow amendments liberally.
Sections 391, 1672, Code of 1930; Chapter 157, Laws of 1936.
The courts in construing a statute must seek the real purpose and intention of the Legislature in adopting the statute and give effect thereto, even to the extent of correcting the language therein used.
Gandy v. Public Service Corporation of Mississippi, 140 So. 687; Gunter v. City of Jackson, 94 So. 844; Spencer v. Myers, 44 N.E. 942; Grems v. Traver, 148 N.Y.S. 200, 149 N.Y.S. 1085; 59 C. J. 967, sec. 573; Ascher & Baxter v. Edward Moyse & Co., 57 So. 299; Cheairs v. Cheairs, 33 So. 414; Bankston v. Coopwood, 55 So. 48.
Why shouldn't a statute permitting the amendment of the affidavit attached to the claim be construed to necessarily permit the amending of the claim itself in the sense of the statute?
24 C. J. 353, sec. 1990; Scott Stamp & Coin Co., Ltd., v. Leake, 99 P. 731.
The courts of other states have held that the term "affidavit" may include the statements of fact constituting the cause of action.
Woods v. Pollard, 84 N.W. 214; Wertz v. Lamb, 117 P. 90.
The courts will also look into the history of a statute to determine the intent of the Legislature.
White v. Miller, 139 So. 611; Cheairs v. Cheairs, 33 So. 414; Cudahy & Co. v. Miller, 60 So. 574; Lehman v. Powe, 49 So. 622; Lehman v. George, 56 So. 167; Levy v. Merchants Bank & Trust Co., 816 So. 807; Rogers v. Rosenstock, 77 So. 958.
In view of the purpose of this statute (Chapter 157 of the Mississippi Laws of 1926) the state of the law at the time of its enactment and the history of the statute, it must be construed to allow an amendment of the itemized account.
Appellant's itemized statement was a sufficient compliance with the statute (Mississippi Code of 1930, section 1671) to entitle it to probate an allowance.
Lehman v. Power, 49 So. 622; Fairley v. Fairley, 82 So. 267; Duffy v. Kilroe, 76 So. 681; Poster v. Shaffer, 36 So. 343; Ellsworth v. Busby, 160 So. 574; 24 C. J. 348, sec. 986; 1 R. C. L. 221, sec. 22; 31 Am. Rep. 75, note; 13 L. R. A. (N. S.) 529; Bloom v. McGrath & Compton, 54 Miss. 249; Tishomingo Ins. v. Allen, 23 So. 305; Hart v. Potter, 31 So. 898; C. & G. R. R. Co. v. Miss. Clinic, 120 So. 203.
Finck v. Brewer, 133 Miss. 9, is no authority in the matter of itemizing claims against estates.
Jacobson & Snow, of Meridian, for appellee.
Section 1671, Mississippi Code 1930, Annotated, provides the only method by which a demand may be probated against the estate of a decedent in Mississippi.
Section 1672, Code above specified, provides where claims against deceased persons' estates shall be probated, the time allowed within which creditors may probate their claims, and further provides: "That where the affidavit is made in good faith and the claim is registered, probated and allowed by the clerk, but the affidavit is defective or insufficient, the court may allow the affidavit to be amended so as to conform to the requirements of the statute, at any time before the estate is finally settled," etc.
It will be noted the claim and the affidavit are considered two separate documents. The claim is the evidence or showing of the debt or demand and the affidavit is the written oath of the creditor, the requirement of the law in order that unscrupulous persons may not impose upon the estates of those who no longer can protect their estates. The affidavit shall "be attached" to the claim. The claim is one thing and the affidavit another. Both are required to be filed within the period of six months next after the first publication of notice to creditors and no claim can be filed subsequent to the six months' period. The claim must stand as probated once the period has elapsed and no amendment or change of the claim itself can be made.
The statute makes no provision for amendment of the claim itself, but only provides for amendment of the affidavit, and the reason therefor is clear and plain. To permit amendment of the claim itself would be to allow a change of the claim, and a different claim could or might be probated after the six months' period had elapsed and the gate opened to a creditor to switch claims after he was barred from presenting and filing same. Claims could be enlarged and changed and the opportunity afforded to defraud other timely creditors as well as the decedent's estate. Charges shown of accounts of one character of merchandise could be changed to another and the basis of the demand completely changed. The claim arises between the parties and is substance. The affidavit is an ex parte statement of the creditor as to the correctness of the claim, and is mere form supporting it.
When 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 the estates of decedents should be strictly construed against creditors and that the provisions thereof were mandatory and should be allowed only when strictly followed when section 1672 in its present form was passed.
We submit the very wording of section 1672 bespeaks an intention to permit amendment of the affidavit only and not of the claim itself.
Cheairs v. Cheairs, 33 So. 414, 81 Miss. 662; Lehman v. Powe, 95 Miss. 456.
The statute should be strictly construed against the creditor.
Jennings v. Lowry & Berry, 112 So. 692; Ellsworth v. Busby, 160 So. 574.
The case of Finck & Company v. Brewer, 133 Miss. 9, 96 So. 402, is squarely in point.
Foster v. Shaffer, 36 So. 243; Gaulden v. Ramsey, 85 So. 109.
The claim of appellant is based upon an account and should have been itemized.
Finck & Company v. Brewer, 133 Miss. 9; Pipes v. Norton, 47 Miss. 61; Ellsworth v. Busby, 160 So. 574; Rogers v. Rosenstock, 77 So. 958; Foster v. Shaffer, 36 So. 243; Cheairs v. Cheairs, 33 So. 414, 81 Miss. 662; Jennings v. Lowry & Berry, 112 So. 692; Lehman v. Powe, 95 Miss. 456; McMahon v. Foy, 61 So. 421; Persons v. Griffin, 73 So. 624; McWhorter v. Donald, 39 Miss. 779.
Argued orally by Thos. Y. Minniece, for appellant.
Joseph Monsour died ill Lauderdale county, Miss., in 1935, and on March 22, 1935, Linda E. Monsour, as executrix, filed notice to creditors to file claims against said estate within six months, which notice she duly signed and filed proof of publication thereof.
On April 30, 1935, Henry Rice, treasurer of the Rice Stix Dry Goods Company, filed what purported to be an account against the estate of Joseph Monsour, which account appears in the record as follows:
no discount.
To continue reading
Request your trial