Toler v. Wells
| Decision Date | 13 October 1930 |
| Docket Number | 28801 |
| Citation | 158 Miss. 628,130 So. 298 |
| Court | Mississippi Supreme Court |
| Parties | TOLER v. WELLS |
1. EXECUTORS AND ADMINISTRATORS. Statute allows four years and six months within which an executor or administrator can be sued (Hemingway's Code 1927, sections 1840, 2643).
Code 1906, section 3105 (Hemingway's Code 1927, section 2643) provides that an action may not be brought against executor or administrator upon cause of action against testator or intestate, but within four years after qualification of executor or administrator, and Code 1906, section 2096a (Hemingway's Code 1927, section 1840), prohibits filing of suit against executor or administrator until after expiration of six months from appointment.
2. EXECUTORS AND ADMINISTRATORS.
Where administrator was appointed and letters of administration were issued November 17, 1922, action could not be maintained against administrator after May 17, 1927 (Hemingway's Code 1927, sections 1840, 2643).
3. LIMITATION OF ACTIONS.
Court's oral approval of administrator's promise could not add anything to promise and make it effective to take claim out of operation of statute of limitation (Hemingway's Code 1927, section 2643).
4. LIMITATION OF ACTIONS.
Administrator's acknowledgment of claim and promise to pay would not take case out of statute of limitation and renew debt (Hemingway's Code 1927, section 2643).
5. LIMITATION OF ACTIONS.
Administrator's acknowledgment of debt and promise to pay could not be basis of estoppel to plead statute of limitation (Hemingway's Code 1927, section 2643).
HON. R E. JACKSON, Chancellor.
APPEAL from chancery court of Bolivar county, Second district, HON. R. E. JACKSON, Chancellor.
Viola G. Wells filed a probated claim with the clerk of chancery court against the estate of Dr. W. R. Kennedy, deceased, W. J. Toler, Jr., administrator, and, from decrees disallowing pleas setting up certain statutes of limitation and fixing the amount of claim and ordering administrator to pay the claim, the administrator appeals. Reversed and rendered.
Decree reversed.
L. C. Hallam, of Jackson, and Earl Child, of Shelby, for appellant.
Section 2643 of Hemingway's Code of 1927, section 2469 of Hemingway's Code of 1917, section 3105 of the Code of 1906, is to be construed in connection with section 1840 of Hemingway's 1927 Code, section 1764 of Hemingway's 1917 Code, section 2096a of the Code of 1906 and thus construed the four-year period commences at the expiration of six months from the date of letters of administration.
Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958.
The statute having started to run runs on.
Byrd v. Byrd, 28 Miss. 144, 151.
The statute begins to run without regard to whether or not notice to creditors to probate their claims is published.
Sively v. Summers, 57Miss. 712, 729.
The heirs as well as the administrator have the right to set up the statute of limitations to defeat any claim against the estate.
Rogers v. Rosenstock, 117 Miss. 144, 151, 77 So. 958; Champion v. Cayce, 54 Miss. 695.
The view that an executor or administrator may revive a barred debt by an acknowledgment or new promise so as to bind the estate is denied in many jurisdictions, and the prevailing view seems to be that he has no such power.
17 R. C. L., page 919, section 280; Henderson v. Ilsley, 11 S. & M. 9; Glenn v. Thistle, 23 Miss. 42, 52; Sanders v. Robertson, 23 Miss. 389.
Louis C. Hallam, of Jackson, for appellant.
The rule is that the chancery court speaks only through its minutes, and that oral instructions or directions by the chancellor are wholly void and of no effect.
Oliver v. Miles, 144 Miss. 852, 857, 110 So. 666; Sections 267, 274 and 289 of Hemingway's 1927 Code; Howard v. Jayne, 124 Miss. 65, 76, 86 So. 152.
A personal representative cannot by his own conduct estop himself so as to bind the estate unless he is vested by law or by will with a discretion to deal with the matter out of which the estoppel is said to arise.
Glenn v. Thistle, 23 Miss. 42; Lewis v. Lusk, 35 Miss. 696; Caldwell v. Kimbrough, 91 Miss. 877.
Earl Child, of Shelby, for appellant.
Action by any person on the notes is barred by section 3105, Code 1906, section 2469, Hemingway's Code of 1917; Section 2643 of Hemingway's Code of 1927.
West Feliciana & C. Railroad v. Stockett, 13 S. & M. 395; Jennings v. Love, 24 Miss. 249; Wilkinson v. Moore, 27 Miss. 365; Boyd v. Lowry, 53 Miss. 352; Champion v. Cayce, 54 Miss. 695; Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958.
Under the rule of law in Mississippi the executor or administrator of an estate has no power to waive the statute of limitation.
Henderson v. Isley, 11 S. & M. 9; Glenn v. Thistle, 23 Miss. 53; Sanders v. Robinson, 23 Miss. 389; Waul v. Kirkman, 25 Miss. 620, 622; Thompson v. Rose, 26 Miss. 202; Byrd v. Wells, 40 Miss. 714; Huntington v. Bobbett, 46 Miss. 528; 17 R. C. L. 919.
Somerville & Somerville, of Cleveland, and Howorth & Howorth, of Jackson, for appellee.
Where the debt is not barred at the time of the decedents' death it is held that a promise by the executor or administrator to pay such claim will furnish a new period from which the statute is to run. This principle is generally admitted, even in those states which deny to the personal representative the power to revive a debt, as the still existing demand upon the estate is such a legal charge as the executor or administrator is empowered to recognize and pay. The promise of an administrator to pay the note of his decedent before the bar of the statute of limitations is complete may renew the debt against the personal estate, but it does not bind the heirs, other than himself, so as to affect their interest in the real estate.
17 R. C. L. 917, section 279; note in 12 Am. Dec. 661; Divine v. Miller, 7 S.C. 225, 49 S.E. 479, 106 A. S. R. 744; Holly v. Gibbons, 176 N.Y. 520, 68 N.E. 889, 98 A. S. R. 696.
Where a valid claim exists against an estate upon which an action might be maintained, the executor may, by an express promise to pay at a future time, give the party a right of action founded on such promise, which will authorize a judgment to be recovered out of the assets of the estate.
Bingham v. Robertson, 25 Miss. 501; Waul v. Kirkman, 25 Miss. 609; Cobham v. Admr., 2 Haywood (N. C. ) 6, 2 Am. Dec. 612; Lawson v. Powell, 31 Ga. 681, 79 Am. Dec. 296; Hunter v. Hunter, 63 S.C. 78, 41 S.E. 33, 90 Am. St. Rep. 665.
By every principle of right, the doctrine of estoppel applies to an administrator under these circumstances, just as it would apply to an individual in his own affairs.
Caldwell v. Kimbrough, 91 Miss. 877; Butler v. Yazzem, 1 So. 16; 10 R. C. L. 835; Wilson v. McElroy, 50 N.W. 55; Chesapeake & N. Railroad v. Speakman, 71 S.W. 633; Renackowsky v. Detroit, 81 N.W. 581; Holman v. Omaha & C. B. Ry. & B. Co., 90 N.W. 833, 94 A. S. R. 293, 62 L. R. A. 395.
Where the administrator acts in good faith, a compromise by him of a claim or a debt due to the estate is valid and binding without previous authorization by the chancery court or the chancellor in vacation.
Long v. Shackleford, 25 Miss. 559; Gulledge v. Berry, 31 Miss. 346; Martin v. Traver, 43 Miss. 517; Anderson v. Gregg, 44 Miss. 170; Montgomery v. Mutual Life Insurance Co., 111 Miss. 6, 71 So. 162; Bailey v. Dilworth, 10 S. & M. 404.
If an executor or administrator cannot be allowed to pay an honest debt, after the lapse of a particular period of time from its maturity, it is plain that every creditor will be forced to pursue his legal rights with the greatest vigilance and promptness, or lose them altogether. The accumulation of unnecessary costs, and the sacrifice of the interests of heirs, would be the natural effect of such a policy. Where he has induced creditors, by his representations and promises of payment, to abstain from subjecting the estate to the costs of legal proceedings, he ought not to be required to violate his engagements, and to repudiate liabilities which he knows to be honest and just.
This is an appeal by W. J. Toler, Jr., administrator of the estate of Dr. W. R. Kennedy, deceased, and by the widow and children of the deceased, from decrees of the chancery court of the Second judicial district of Bolivar county, disallowing pleas setting up certain statutes of limitation which were interposed by the said administrator and the heirs at law of the deceased, as a bar to the payment of the probated claim of the Shelby Drug Store, Inc., and fixing the amount of said claim at two thousand dollars, and ordering the administrator to pay the said sum to Mrs. Viola Wells, the holder of said claim and indebtedness.
On September 19, 1922, Dr. W. R. Kennedy, who was a practicing physician at Shelby, in Bolivar county, Mississippi, died intestate, and, on November 17, 1922, in accordance with the prayer of a petition of the widow of the deceased, W. J. Toler, Jr., was appointed, and qualified as administrator of his estate. Letters of administration were issued to the said W. J. Toler, Jr., and a warrant of appraisement was issued. The appraisers made their report, and filed it in the court below on April 23, 1923; and on June 27, 1923, the administrator made and filed his first report showing receipts and disbursements, and praying the court to authorize the disbursement to the heirs at law of the proceeds of insurance on the life of the deceased, as exempt to said heirs, and on June 28, 1923, the court entered an order approving and confirming the said report of the administrator and directing him to distribute to the heirs at law, as exempt property, the sum of five thousand dollars, the proceeds of said life insurance.
Numerous claims were...
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