Union & Planters' Bank & Trust Co. v. Rylee

• Decision Date: 15 January 1923
• Docket Number: 22757
• Citation: 94 So. 796,130 Miss. 892
• Parties: UNION & PLANTERS' BANK & TRUST CO. v. RYLEE. RYLEE v. UNION & PLANTERS' BANK & TRUST CO
• Court: Mississippi Supreme Court

94 So. 796

130 Miss. 892

UNION & PLANTERS' BANK & TRUST CO. v. RYLEE.

RYLEE v. UNION & PLANTERS' BANK & TRUST CO

No. 22757

Supreme Court of Mississippi

January 15, 1923

1. EXECUTORS AND ADMINISTRATORS. Claim against estate, although duly probated and registered, must be proved by competent evidence.

In a proceeding to establish the validity of a claim probated against the estate of a decedent, the claim, although duly probated and registered, must be proved by competent evidence.

2. MONEY PAID. One cannot make himself creditor of another without his consent.

No man can make himself the creditor of another by paying that other's debt against his will or without his consent, or at least without some act on his part which will prevent him from withholding consent.

3 EVIDENCE. Agent's admission of correctness of account against principal not binding unless made within scope of agent's authority.

An agent's admission of the correctness of an open account against his principal is not binding on the principal unless the making of the admission was within the scope of the agent's authority.

4 EVIDENCE. Hearsay testimony inadmissible if objected to.

Hearsay testimony is inadmissible in evidence if objected to.

5. APPEAL AND ERROR. Judgment or decree not reversed for admission of incompetent when supported by other and competent evidence.

A judgment or decree will not be reversed for the admission of incompetent, when supported by other and competent evidence.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court of Tallahatchie county, HON. G. E WILLIAMS, Chancellor.

Suit by the Union & Planters' Bank & Trust Company, executor of A. J. Rylee, deceased, against Thomas Rylee and John N. Rylee. From decree for plaintiff against John N. Rylee, and denying relief as against defendant Thomas Rylee, plaintiff and John N. Rylee, appeal. Reversed in part and affirmed in part.

Decree reversed and remanded as to Thomas Rylee; Affirmed as to J. N. Rylee.

Lester G. Fant, for appellant.

The supreme court does reverse the chancellor's finding of facts when the chancellor's findings are not borne out by the evidence. Mallory v. Walton, 119 Miss. 396. It is universally conceded that evidence to show an intention of the parties to a contract cannot prevail if directly contrary to the plain sense of the words employed. Lewis v. Tipton, 75 Am. Dec. 498.

The above rule is applicable to bills and notes, that is, when an agreement is reduced to writing it is deemed a merger and overcomes all prior or contemporaneous negotiations and declarations on the subject and that no old evidence is admissible to contradict, vary, explain, modify or in any way to add to or subtract from the terms of the instrument. Park v. Thomas, 13 S. & M. 11; 50 Am. Dec. 135; Guthrie and Western R. R. Co. v. Rhodes, 21 L. R. A. (N. S.) 490; Cochran v. Zachary, 16 L. R. A. (N. S.) 235; Adams v. Wilson, 45 Am. Dec. 240; Smitler v. Simon, 114 N.Y. 176; Central Savings Bank v. O'Conner, 94 N.W. 11; Wright v. Moss, 69 Am. Dec. 291.

The principle of law is clear that where promises are ambiguous the promissor cannot, by parole proof, relieve himself from the obligation of it by contradicting or explaining it. Hobart v. Dodge, 25 Am. Dec. 214. If Andrew J. Rylee were alive he would be estopped to deny the validity of this note, and the only way he could meet this would be to show that there was no consideration for it, or that there was a payment.

Sivley, Evans & McCadden, for appellant.

Under the practice in Mississippi prior to the statutory enactments, a claim against the estate of a dead man was theoretically presented to the personal representative of his estate wherever it appeared of record, or where the facts were so notorious that the executor or administrator was charged with the knowledge of the existence of the claim. This, however, has been entirely changed by statutory provisions, and the method now provided for is set forth in Hemingway's Mississippi Code, section 1774, and the Mississippi Code of 1906, section 2106, as follows:

"How claims probated.--Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, or if the claim be a judgment or decree and duly certified copy thereof, or, if there be no written evidence thereof, an itemized account, or a statement of the claim in writing, signed by the creditor, and made affidavit, to be attached thereto, to the following effect, viz: That the claim is just, correct, and owing from the deceased; that it is not usurious, and that neither the affiant nor any other person has received payment in whole or in part thereof, except such as is credited thereon, if any. Thereupon, if the clerk shall approve, he shall indorse upon the claim the words following: 'Probated and allowed for $ and registered this day of A. D. 19 , and shall sign his name officially thereto. Probate, registration, and allowance shall be sufficient presentation of the claim to the executor or administrator."

It will be noted that under this section of the Code that claims are required to be probated as follows. First, written evidence, if any, shall be presented to the clerk; second, a judgment or decree shall be probated by a duly certified copy thereof; third, if there be no written evidence, then an itemized account, or statement of the claim in writing. Under all of the foregoing provisions the creditor must sign the evidence of the claim and make affidavit to the same, as provided in the statute. When all of the foregoing provisions have been complied with, then the clerk must approve and indorse on the claim that the same has been probated, allowed and registered, and sign the same officially. After the full statutory requirements have been performed by the creditor, then such probation, registration and allowance shall constitute sufficient presentation of the claim to the executor or administrator.

The CLAIM WAS NOT PROPERLY PROBATED AS PROVIDED BY LAW. It is manifest by examination of the claim as probated, and the evidence offered upon the trial, that claimant has flagrantly disregarded the plain provision of the Code with reference to probating claims against the estate of a decedent. Then, again, the claimant did not introduce evidence that even a suit had been instituted by either Pease & Dwyer or the Union & Planters Bank & Trust Company, nor does it show that there was an assignment of either of said judgments by the owner of the same. The judgment record was not introduced upon the trial of the case, nor was any evidence whatever offered to show that Thomas Rylee was subrogated in any wise to the rights of the alleged judgment creditors.

If Thomas Rylee actually paid these judgments, he does not show that there was any obligation on his part to pay them, and certainly he cannot be heard to assert a right against the estate of A. J. Rylee where he merely volunteered to liquidate an indebtedness evidenced by the alleged judgments. The claimant is, therefore, in the attitude of either volunteering to pay the debt of another, or, he purchased the judgments so recovered without taking any assignment of the same. In either event, he cannot be heard to assert his claim against the estate of the dead man under such conditions.

This Code provision has been before this court for construction upon several occasions. In the case of Chears v. Chears, 81 Miss. 662, the court held this statute to be mandatory, and that on affidavit in support of a claim which did not fully comply with the statute gave no validity whatever to the probate of such claim. Walker v. Nelson, 87 Miss. 268; Lehman v. George, 88 Miss. 798; Cudahay & Co. v. Miller, 103 Miss. ; McMahon v. Foy, 104 Miss. 309; Persons v. Griffin, 112 Miss. 643.

In this case it was also held that the court had no right to assume the justness or correctness of such claim, and should not inquire into its equity and good faith where such claim had not been properly probated. Rogers v. Rosenstock, 117 Miss. . From the foregoing decisions, it is manifest that this pretended probate of the claim of Thomas Rylee did not meet the requirements of the mandatory statute, and the motion made to exclude the same should have been sustained.

TheRE WAS NO EVIDENCE TO SUSTAIN THE CLAIM. Under assignment of errors, 1, 3 and 4, the question of sufficiency of evidence to sustain the claim is fully raised. The only witness introduced by claimant was John Rylee, his son, and through him a check on the Central State National Bank was offered in evidence, which on its face appeared to be payable to Sheriff Brown. John Rylee knew nothing about the payment of the check, nor did he know whether it was given in payment of the judgments. The only thing that he knew was what appeared upon the face of the check. The court admitted the check over the objection of the executor upon the assurance of counsel that it would be connected up by other evidence.

As the record stands there is no evidence to show that Brown was ever sheriff, or that the check was ever delivered to him, or that the money was ever received thereon, or that the judgments were ever, in fact, paid and satisfied. Indeed there isn't the slightest semblance of evidence in this record, to justify the assumption that a judgment was recovered in either of the alleged suits, or that Thomas Rylee paid the same, nor is there any evidence of the fact that an assignment of the judgments was ever made to Thomas Rylee, nor is there any evidence whatever to show that he was in any way subrogated to the rights of the judgment creditors. If as a matter of fact he actually paid said judgments, then he was purely a volunteer in making such payment, for there was no legal obligation...