Walker v. Nelson

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: TRULY, J.
• Citation: 39 So. 809,87 Miss. 268
• Parties: WADE G. WALKER v. JAMES B. NELSON, EXECUTOR, ETC
• Decision Date: 15 January 1906

39 So. 809

87 Miss. 268

WADE G. WALKER
v.
JAMES B. NELSON, EXECUTOR, ETC

Supreme Court of Mississippi

January 15, 1906

November, 1905

FROM the circuit court of, first district, Panola county, HON. F. C. HOLMES, Special Judge.

Walker, the appellant, was plaintiff, and Nelson, executor of the last will and testament of R. H. Porter, deceased, was defendant in the court below. The suit was upon an open account for goods, wares, and merchandise sold by plaintiff to the testator in his lifetime. While the account purported to be probated, yet its probation was defective in the particulars mentioned in the opinion of the court.

From a judgment in defendant's favor the plaintiff appealed to the supreme court.

Affirmed.

L. F. Rainwater, and W. E. Booth, for appellant.

The sole question presented by the record in this case is as to the sufficiency of the affidavit to the account sued on. The objection urged against the sufficiency of the affidavit is based upon the case of Cheairs' Executors v. Cheairs' Administrators, 81 Miss. 662, in which this court held that there must be a substantial compliance with Code 1892, § 1932, to render the probate of an account against the estate of a deceased person valid. The Cheairs case differs very materially from the one at bar.

The affidavit in the case at bar contains everything required by sec. 1932, supra, except the signature of appellant to his account, while in the Cheairs case several matters of substance were omitted--viz.: It did not state that the claim was not usurious, nor that neither the affiant nor any other person had received payment, nor that it was owing from the deceased--all of which are in the affidavit for probate in the case at bar.

The court in the Cheairs case, supra, say: "Both accounts and written evidences of debt must be accompanied by the substance of the prescribed affidavit. In the case before us (Cheairs case) the claim may be usurious for aught we know. No one can say from its face that it is not, and the affidavit should show that it is not. We do not say whether the other omissions mentioned at the outset are fatal or not."

The court evidently did not intend to hold, and did not hold, that any omissions not of substance would vitiate the probate, nor that the statute is mandatory as to matters not of substance. This court has repeatedly held that the signature of the affiant to an affidavit is not essential; the certificate of the officer that the...