Rogers v. Rosenstock

Decision Date07 January 1918
Docket Number19825
Citation117 Miss. 144,77 So. 958
CourtMississippi Supreme Court

Division B

APPEAL from the chancery court of Sharkey county, HON. E. N. THOMAS Chancellor.

In the administration of the estate of Bernard Sinai, deceased, a decree was entered allowing certain creditors' claims and disallowing the claim of M. H. Rogers. From the decree allowing these claims, Morris, Rosenstock, executor and others appeal, and from the decree disallowing his claim, M H. Rogers appeals.

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

Affirmed and reversed.

Clements & Wright and R. B. Anderson, for appellant, and cross-appellee.

Hirsh, Dent & Landau, for appellee and cross-appellant.

Morris Rosenstock and T. C. Catchings, for appellee, Wright Bros., Hardware Co.

Brunini, Hirsch & Griffith, for all other appellees and cross-appellants.



This appeal questions the decree of the chancery court of Sharkey county allowing the claims of certain creditors of the estate of Bernard Sinai, deceased, and disallowing the claim of M. H. Rogers. M. H. Rogers, Charles W. Buck, Pearl & Kline, Mississippi Lumber Company, Lee Richardson & Co., Bernard & Martin, Goodbar & Co., Abe Blum, Louis Hoffman Hardware Company, Van Vleet-Mansfield Drug Company, and Wright Brothers Hardware Company probated their respective claims against the estate then being administered by Morris Rosenstock, the executor of the last will of said Bernard Sinai, deceased. All the claims were allowed except the claim of M. H. Rogers. From the decree allowing these claims the executor and certain creditors of the estate prosecute an appeal, while M. H. Rogers prosecutes for himself an appeal from the decree disallowing his claim. It appears that Rogers probated an account in the total sum of twenty-two thousand, one hundred and fifty-eight dollars and sixty-three cents, consisting of various claims against the firm of Sinai, Fort & Co., which had failed in business and in which the deceased, Bernard Sinai, was a partner. The several claims constituting the probated account of Rogers represented claims bought up by Rogers against the partnership and purporting to have been duly assigned in writing to claimant Rogers. The decedent, whose estate is here being administered, departed this life September 8, 1910. His will was probated and letters testamentary granted to his executor on the 16th day of September, 1910. For some reason, not disclosed by this record, the administration of the estate was delayed and the estate was finally declared insolvent October 28, 1915. When the estate was declared insolvent notice in accordance with the statute was given to creditors to refile their claims on a day fixed and have the same adjudicated. Objections were filed to each of the claims involved in this appeal and the chancellor heard these objections and rendered the decrees appealed from. The sole point relied upon by the executor in his direct appeal from the decree complained of is the contention that each of the claims was barred by the statute of limitations. In reference to this point it may be stated that the claim of Pearl & Kline was duly probated and allowed November 21, 1910, but the claim was not paid and no suit was filed by Pearl & Kline within four years and six months from the grant of letters testamentary. It appears from the record, then, that this creditor had no remedy against the executor after March 16, 1915. At that time the estate had not been declared insolvent, and was not declared insolvent until October 28, 1915, more than six months thereafter. Section 3105, Code 1906 (section 2469, Hemingway's Code), reads as follows:

"Action Against Executor or Administrator.--An action or sciri facias may not be brought against any executor or administrator upon any judgment or other cause of action against his testator or intestate, but within four years after the qualification of such executor or administrator."

This section and section 2096a, Code 1906, prohibiting the filing of a suit against the executor or administrator until after the expiration of six months from his appointment have been by this court construed together as giving four years and six months within which an executor or administrator can be sued. The probated notes forming the basis of the claim of Pearl &amp Kline, matured before the death of Bernard Sinai. This fact renders section 3105 applicable, and limits the time in which this creditor can sue the executor in this case. Before any suit was filed, the right of the creditor to sue had been barred by the statute of limitations. Under the previous holdings of this court section 3105 has no application to causes of action which accrued after the death of the decedent. Bingaman v. Robertson, 25 Miss. 501; Pope v. Bowman, 27 Miss. 194; McLean v. Ragsdale, 31 Miss. 701; French v. Davis, 38 Miss. 218; Sivley v. Summers, 57 Miss. 712; Buckingham v. Walker, 48 Miss. 609. Any uncertainty in the construction of our various statutes of limitations applicable to the administration of an estate of a decedent can be removed by reading and considering the statutes together, and letting each operate as written. Under section 2107, Code 1906, all claims must be registered within one year or they are forever barred, and "a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator." If this section is complied with, then under section 2110 the presentation of the claim and having it probated and registered stops "the running of the general statute of limitations as to such claim, whether the estate be solvent or insolvent." This statute prevents the claim from being outlawed before there is an orderly administration and before the creditor can be paid in due course of administration. There is a statutory remedy whereby the executor or any party in interest may contest any claim, and there is reason to argue that the due presentation and allowance of the claim by the clerk should operate in the nature of a judgment allowing the claim, and that any unusual delay or maladministration ought not to defeat the claim of any creditor who has in due season come forward and duly probated his account or claim. There is authority in a few states holding that the allowance of a claim by the probate court has the force and...

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13 cases
  • Greene v. Greene
    • United States
    • Mississippi Supreme Court
    • November 8, 1926
    ...but the very debt itself. Hemingway's Code, section 2479; Central Trust Co. v. Meridian Light & Ry. Co., 106 Miss. 431; Rogers v. Rosenstock, 117 Miss. 144; v. Schmidt, 82 Miss. 475; Cox v. American Co., 88 Miss. 88. A donor cannot convert a gift or debt into an advancement unless the donee......
  • Rice Stix Dry Goods Co. v. Monsour
    • United States
    • Mississippi Supreme Court
    • May 10, 1937
    ...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 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 ......
  • Bankston v. First Nat. Bank & Trust Co. of Vicksburg
    • United States
    • Mississippi Supreme Court
    • December 7, 1936
    ...v Stephenson, 47 So. 783; Gaulden v. Ramsey, 85 So. 109, 123 Miss. 1; Persons v. Griffin, 112 Miss. 643, 73 So. 624; Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958. lack of a certificate is fatal. Merchants & Manufacturers Bank v. Fox, 165 Miss. 833, 147 So. 789; Jordan v. Love, 171 Miss. ......
  • United States Fidelity & Guaranty Co. v. Blanchard
    • United States
    • Mississippi Supreme Court
    • May 16, 1938
    ... ... original claim within four years and six months after ... publication ... Rogers ... v. Rosenstock, 117 Miss. 144, 77 So. 958; Sec. 2107, Code of ... There ... would be no abuse of discretion in disallowing the ... ...
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