Summary
In Merchants and Manufacturers Bank v. Fox, 165 Miss. 833, 147 So. 789 (1933) we recognized that any claimant probating a promissory note may withdraw the original note by complying with the statute.
Summary of this case from Estate of Wilson v. National Bk. of CommerceOpinion
No. 30596.
April 24, 1933.
1. RECORDS.
Statute requires clerk of court, when original instruments executed by decedent are withdrawn from files, to make and retain certified copies (Code 1930, section 1671).
2. RECORDS.
Clerk's certificate on copies retained when original instruments executed by decedent are withdrawn from files, must be under hand and seal of clerk and must show clerk has had originals placed before him and that copies retained are true copies (Code 1930, section 1671).
3. RECORDS.
It is sufficient for clerk to indorse on copy retained of instrument executed by decedent and withdrawn from files that same is "true copy of original this day exhibited to me," dating certificate, signing same, and affixing thereto his official seal (Code 1930, section 1671).
4. RECORDS.
Where original note of decedent is withdrawn from files, all indorsements and credits must be shown by copy retained and certificate (Code 1930, section 1671).
5. RECORDS. Motion of claimant, who after expiration of six months for probate, moved that clerk be allowed to make proper certificates of true copies of notes withdrawn and to sign probate and allowance, held properly overruled ( Code 1930, section 1671).
Facts disclosed that claimant withdrew original notes executed by decedent and attempted to comply with Code 1930, section 1671, by leaving copies with clerk, but that clerk failed to attach his certificate to copies that they were in fact true copies, though there was indorsed on face of each of notes the word "copy;" that cashier of claimant bank made affidavit required by statute; that jurat was executed by clerk under seal of court; and that under affidavit and under signature of clerk was statement that note was probated and allowed for certain sum and registered on date mentioned, but clerk omitted to sign his name to certificate of probate and allowance.
6. EXECUTORS AND ADMINISTRATORS.
Substance of law on subject of probating claims against estate, is mandatory (Code 1930, section 1671).
APPEAL from chancery court of Jones county. HON. A.B. AMIS, Chancellor.
Shannon Schauber, of Laurel, for appellant.
The statute fixes the method of probating claims.
Section 1671, Code of 1930.
To certify is to testify in writing.
1 Words and Phrases, page 616.
It was evidently the intention of the legislature in amending Section 1774 Hemingway's Mississippi Code, 1917 to liberalize the laws governing the probation of claims against the estates of decedents.
Where, as in this case, it is manifest that the statute has been reasonably complied with, by the person presenting the claim to be probated, and that the clerk, before allowing the same, had so determined, to hold this claim invalid because the clerk had not written a certificate and attached to the notes, would be certainly sacrificing substance to form.
Both opinions in the Stevens v. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160, 112 Miss. 524, 73 So. 570, merely decide that where there is no endorsement whatever on a claim by the clerk showing that the claim was probated, allowed and registered, it is not a sufficient presentation to authorize the administrator to pay the claim.
A substantial and not a literal compliance with the statute is required.
Bankston v. Coopwood, 96 Miss. 511, 55 So. 48.
To hold the certificate here complained of invalid would be to sacrifice substance to form, in a case wherein it is manifest that the statute had in all respect been complied with by the persons presenting the claims to be probated, and the clerk, before allowing them, had so determined.
David v. Blumenberg, 65 So. 503.
The Mississippi Legislature, in 1926, amended section 1774 of Hemingway's Annotated Code, 1917, which is brought forward as section 1672 of the Mississippi Code of 1930, so as to permit the court to allow amendments to the affidavit to probate claims.
It has been held by this court, in several cases, that in attachment suits, where the justice of the peace failed to attach his signature to the affidavit, that the same could be amended by allowing the Justice of the Peace to affix his signature, even though the case was then pending on an appeal in the circuit court.
Green v. Boone, 57 Miss. 617; Boisseau Martenez v. Kahn, 62 Miss. 757.
If, the claim filed by the appellant fully complied with the statute by giving all the information necessary to show the administrator the nature of the claim, and the claim was presented to the clerk who made the proper endorsements thereon, then creditor, the appellant, had discharged his duties and the fact that the clerk did not attach his signature below the endorsement cannot effect the creditor's rights.
24 C.J. 348, section 984.
D.B. Cooley, of Laurel, for appellee.
The filing of copies of notes with the claim is insufficient and does not meet the requirements of the statute.
McMahon v. Foy, 61 So. 421; Levy v. Merchants Bank Trust Company, 86 So. 807.
The creditors must fashion his probate according to the pattern drawn by our lawmakers.
Persons v. Griffin, 73 So. 624.
Section 1671, Code 1930, providing the manner in which the claims of creditors shall be registered, probated and allowed, must be strictly pursued by the creditors. The statute must be strictly construed against the creditors.
Jennings v. Lowrey Berry, 112 So. 694; Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Walker v. Nelson, 87 Miss. 268, 39 So. 809; Saunders v. Stephenson, 94 Miss. 676, 47 So. 783; Lehman v. Powe, 95 Miss. 446, 46 So. 622; Lehman v. George, 99 Miss. 798, 56 So. 167; Cudahy Co. v. Miller, 103 Miss. 435, 60 So. 574; McMahon v. Foy, 104 Miss. 309, 61 So. 421; Stevens v. Dunlap, 108 Miss. 690, 67 So. 160; Persons v. Griffin, 112 Miss. 643, 73 So. 624; Levy v. Bank, 124 Miss. 325, 86 So. 807.
The law charged the officer of the bank with the duty to see to it that the bank's claim was properly probated and allowed according to law; and also to see to it that the clerk performed his duty in this respect.
Dunlap Mercantile Company v. Stevens, 73 So. 673.
The law plainly demands the official signature of the clerk to the words of the endorsement. The purpose of the statute in requiring the endorsement to be signed is to identify it. Under our laws there is no such thing as an oral approval of a claim against the estate of a decedent.
The only way pointed out by the law for the clerk to probate and allow a claim is by his written endorsement on the claim; in the words of the statute with his name signed officially thereto.
Dunlap Mercantile Company v. Stevens, 67 So. 160, 73 So. 570.
The signature of an official to a document, where required by statute, is essential to give it validity.
Felt v. Covington, 99 So. 1; Watson v. State, 146 So. 122.
Argued orally by Charles R. Shannon, for the appellant, and by D.B. Cooley, for appellee.
Appellant bank held three genuine notes signed and delivered to said bank, for value received, by D.B. Fox, now deceased. After the death of Fox, appellee was appointed administrator of the decedent's estate. Within six months the cashier attempted to probate the notes under the statute, section 1671, Code 1930, which reads as follows:
"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, a 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 make 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, and that security has not been received therefor, except as stated, 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. ____,' and shall sign his name officially thereto. Probate, registration, and allowance shall be sufficient presentation of the claim to the executor or administrator: Provided, that if the claim be based upon a demand of which there is no written evidence or upon an itemized account the statement of said claim or the itemized account shall be retained and kept by the clerk among the official papers pertaining to the estate; and if the claim be based upon a promissory note or other instrument purporting to have been executed by the decedent, the creditor shall file with his claim the original thereof to remain in the keeping of the clerk, or having so presented said original writing he may withdraw the same when the clerk has made certified copy thereof the said copy to remain on file; provided further, that when such copy has been retained by the clerk in lieu of the original writing the administrator or any party in interest shall have the right, good cause being shown upon application to the court or chancellor and upon order to that effect, to have the original produced before the court or clerk, for a reasonable time to be fixed in said order, for the inspection of the administrator or other party in interest, who may make photographic copies thereof under the supervision of the clerk."
The bank desired to avail of the privilege of withdrawing the original notes and attempted to comply with the statute by leaving copies with the clerk, the originals having been exhibited and as the clerk now testifies the copies were by him compared with the original notes and found by him to be true, full, and correct copies. But the clerk failed to attach his certificate to the copies that they were in fact true copies. There is indorsed on the face of each of the notes the word "copy," but there is no certificate to that effect by the clerk. The statute in plain terms requires the clerk, when the originals are to be withdrawn, to make and retain certified copies thereof.
The statute does not prescribe the form of the certificate, but certainly there must be under the hand and seal of the clerk sufficient to make it known as a matter of record that the clerk has had the originals placed before him and that he, the clerk, not some one else, certifies that the copies which remain with the clerk are true and correct copies of the originals. This may be done by the clerk indorsing on the copy that the same is "a true copy of the original this day exhibited to me," dating the certificate, signing the same, and affixing thereto his official seal. Other forms of the required certificate may be used, but whatever the form, it must show that the original note was presented to the clerk and that the copy retained by him is in truth and in fact upon the official certificate of the clerk, a true and full copy of the original. It follows, of course, that all indorsements and credits must be shown by the copy and certificate, as if the original were retained.
The cashier of the bank made the affidavit required by the statute, and the jurat was executed by the clerk under the seal of the court. Under the affidavit and under the signature of the clerk is the following: "Probated and allowed for eleven thousand, nine hundred forty-four dollars and forty-four cents and registered this the 19th day of March, 1932," but the clerk omitted to sign his name to the said certificate of probate and allowance. After the expiration of the six months for probate, the claimant moved that the clerk be allowed to make out the proper certificates of true copies and to sign his name to the probate and allowance, but under the authority of Stevens v. D.R. Dunlap Mercantile Co., 112 Miss. 524, 73 So. 570, the court overruled the motion and correctly so.
It is regrettable that a just claim, especially when held by a bank which is in a large sense a trustee for its numerous depositors, should have to be rejected for such reasons as above stated. But the substance of the law on this subject is mandatory. It is easy with proper care to comply with the statute, and its mandatory observance saves many estates of being plundered by fictitious claims. There is perhaps no chancellor who has seen long service in this state who has not witnessed attempts to swindle estates by fabricated claims. For this reason the statute must be upheld in all its requirements although an honest creditor sometimes severely suffers thereby. In such a large claim as this, the bank should have had its attorney to attend to this important matter, and thus the loss would have been avoided.
Affirmed.