Wells v. McCollough

• Decision Date: 05 March 1917
• Docket Number: 18935
• Citation: 113 Miss. 401,74 So. 289
• Court: Mississippi Supreme Court
• Parties: WELLS ET AL. v. MCCOLLOUGH ET AL

74 So. 289

113 Miss. 401

WELLS ET AL. v. MCCOLLOUGH ET AL

No. 18935

Supreme Court of Mississippi

March 5, 1917

Division B

APPEAL from the chancery court of Calhoun county, HON. J. G MCGOWEN, Chancellor.

Exceptions by W. B. Wells and others against T. P. McCollough and others, administrators, to the allowance of a probate claim of Mrs. C. G. Wells, widow and administratrix of J. C. Wells deceased. From an order allowing the claim, appellants appeal.

Appellants are the heirs at law of J. C. Wells, deceased, and the present contest arises over exceptions filed by them to the allowance of the probated claim of Mrs. Cannie G. Wells, the widow of J. C. Wells, deceased, and the administratrix of his estate. It appears that Mr. Wells in his lifetime negotiated for and purchased certain real estate from a Mr. Brooks. There was no cash consideration paid for the land, but the amount of the consideration, to wit, one thousand one hundred and thirty-three dollars, was furnished by Scott Hardin. Brooks, at the request of J. C. Wells, executed the deed to Mrs. C. G. Wells. Hardin, in furnishing the money, accepted the joint and several note of Mrs. C. G. and J. C. Wells in the sum of one thousand, one hundred and thirty-three dollars and took a deed of trust on the land to secure the note. The note was dated December, 1910, due one day after date payable to the order of Scott Hardin or bearer, and stipulated upon its face that it was given for the purchase price of the lands therein properly described. In executing the note Mrs. Wells signed first and J. C. Wells then joined her as comaker. Before the note was paid Mr. Wells died. Thereupon Mrs. Wells was appointed administratrix in connection with her co-administrator, T. P. McCullough. Scott Hardin did not probate this note against the Wells estate but on August 11, 1911, after the death of J. C. Wells, Mrs. C. G. Wells paid the full amount of the note and the payment was evidenced by the following receipt written upon the back of the paid note:

"$ 1,133.00. Wardwell, Miss., Aug. 11, 1911.

"Received on the within note of Mrs. C. G. Wells, the sum of eleven hundred thirty-three and 00/100 dollars, in full payment of this note Scott Hardin."

She thereafter attached the canceled note, with the receipt indorsed on the back thereof, to the usual affidavit of probate, and presented her claim against the estate of J. C. Wells, deceased, for the full amount of the one thousand, one hundred and thirty-three dollars and the chancery clerk accepted and probated the claim for this amount. Appellants then objected to the allowance of this claim, and upon the hearing before the chancellor certain evidence was introduced pro and con. The written exceptions charged that the debt is not a just claim against the estate, but the individual debt of Mrs. Wells; that the only party who could have probated this note was Scott Hardin; that the note was never transferred by Scott Hardin to Mrs. Wells, was never probated by Scott Hardin, and the same now is not evidence of any claim of Mrs Wells. On the hearing objections of appellants were directed both to the form of the probate and to the sufficiency of the testimony. Mrs Wells was introduced as a witness in her own behalf, and testified briefly over the objections of appellants. Mr. T. L. Hollis, half-brother of Mrs. Wells, testified to certain declarations or admissions by Mr. Wells in his lifetime to the effect that he bought the land to reimburse his wife for certain lands which she had owned and which Mr. Wells had sold, amounting in value to two hundred and fifty dollars, and also to reimburse her for rents which Mr. Wells had collected for his wife for five or six years or from 1902 to about 1907 or 1908. Mr. Hardin was also introduced, and testified that Mr. Wells negotiated for and made the agreement about executing the note and deed of trust, and also testified to a statement by Mr. Wells that he had some young stock he intended to sell and from the proceeds of the sale to pay the note. Mr. Hardin further testified that he had held an old mortgage on the place, which he surrendered when Mr. Brooks deeded the land to Mrs. Wells, and thereupon took a new note and mortgage. He also testified to Mrs. Well's paying the note in accordance with the receipt executed on the back. The deed to the land was introduced, and shows a consideration of one thousand, seventy dollars and fifty cents and the usual warranty provisions. This was all the evidence to support the claim of Mrs. Wells. There was evidence in defense which it is unnecessary to detail. The chancellor allowed the full amount of the claim, and from his decree appellants appeal.

Decree reversed, and cause remanded.

Thomas D. Haman, Jr., for appellant.

A receipt is not an assignment. If Mrs. Wells has proved by her testimony that the note in question was, as between the makers, primarily the debt or evidenced such debt of J. C Wells, and that she was only a surety, then at the time she probated, if she did not present to the clerk with affidavit as required, any written evidence of a claim against said estate due her, any itemized account of such claim or any statement of such claim in writing, signed by her.

I take it that the evidence of the debt required by the statutes means such evidence as on its face indicates an indebtedness to the one claiming to be the creditor.

The writing evidences a debt due Scott Hardin. There is no written evidence that the one seeking to prove it was a surety. There is no written evidence of assignment to Mrs. Wells.

The receipt of Scott Hardin will not serve. Even if it would for a joint maker, it would not for a surety where there is no written evidence of suretyship on the claim as presented. There was no itemized account. An account requires an indication on it of who it creditor and who debtor.

Aside from the fact that Mrs. Wells is affiant, there is nothing to indicate that she held a claim against J. C. Wells or his estate. There was no statement by the creditor to indicate debtor and creditor.

We question whether an assignee taking after the death of a person can probate a claim based on a note payable as this one. If she was a surety, we think her claim arose after the death of J. C. Wells. As a surety only in equity she could have compelled the creditor to first probate his claim against her husband's estate.

If it is claimed that Mrs. Wells was neither a joint debtor nor a surety and that her claim arose because J. C. Wells intended to make the debt his own individually in discharge of a former indebtedness he owned Mrs. Wells, then we submit:

First, the old debt to Mrs. Wells being discharged she could not probate that, as she has not attempted to do.

Second, there was no new debt to her created, but to Scott Hardin secured by a lien on the land of Mrs. Wells. She could not probate.

Third, she does not offer proof that she was compelled to pay it to save her land. In fact, she did not have to pay it without having Scott Hardin first probate it against the estate.

Fourth, if she paid the debt of the Estate to save her land, either her claim arose after the death of deceased and so could not be probated or if subject to probate, the original note to Scott Hardin, on its fact a joint note, together with the receipt of Scott Hardin of payment by her is not the written evidence of the claim required by the statute because an essential link in the chain of evidence necessary to establish the claim of the affidavit as her claim is missing from the written evidence, nor does it constitute an itemized account of her claim against the estate. This is evident from the fact that it requires further evidence to identify the claim as her claim.

Aside from all this, Mrs. Wells, in our opinion, failed to prove any original indebtedness due her from deceased on which to base her claim that his intention was to give her the land or assume the debt to Scott Hardin as his own in payment of such original indebtedness to her which, if a fact was probably inadmissible, on account of the statute of frauds, and if admissible a part of the written evidence necessary to be presented to the clerk with her affidavit for the valid probate of her claim.

She failed to prove any definite amount.

We think also that the payment and the taking of the receipt by Mrs. Wells for the money paid to Scott Hardin by her on her note given for land conveyed to her exclusively, constituted an act by which she conclusively admitted the debts evidenced by the note as hers, and only hers.

Creekmore & Stone, for appellees.

The sole question in this case is whether under the circumstances disclosed Mrs. Wells had a provable claim against the estate of J. C. Wells, and, if so, was it properly probated? It is argued by appellants, in their brief that the written evidence of a claim if any shall be presented to the clerk when probate is sought, and that affidavit as prescribed by statute shall be made by the creditor. And it is further insisted that an evidence of debt required by the statute means such evidence as on its face indicates an indebtedness to the one claiming to be the creditor.

We respectfully insist that the note and receipt of Scott Hardin showing payment thereof by Mrs. C. G. Wells meets the requirements of the statute requiring the claimant to present the written evidence of his claim. It will be borne in mind that this note was payable to bearer and that mere possession thereof prima facie showed ownership of the note by the holder and that such holder was entitled to receive payment therefor. Appellants in their brief cite section 3732 of the Code providing that when a surety has paid money on an obligation of his principle that the holder of the...