Summary
In Stewart v. Estate of Williamson, 243 Miss. 450, 138 So.2d 742 (1962), claims were probated for premiums on a number of liability insurance policies.
Summary of this case from Central Optical Merchandising v. LoweOpinion
No. 42211.
March 12, 1962.
1. Executors and administrators — claims against estate of decedent — claim for insurance premiums due on final audit sufficiently itemized.
Claim against decedent's estate showing due date, kind of policy, period covered, policy number, and amount due on final audit was sufficiently itemized so as to comply with the statute. Sec. 568, Code 1942.
2. Evidence — matter of common knowledge — insurance premiums due on final audit.
It is common knowledge that when an insurance agent writes certain kinds of insurance the policy provides that the insured pay an estimated premium and upon termination of the policy the earned premium shall be computed in accordance with the company's rules, rights and rating plans, and if upon final audit the computed premium exceeds the estimated premium paid, the insured pays the excess to the company or the agent.
3. Executors and administrators — claims against estate of decedent — claim based on note properly disallowed were original note not filed.
Claim against decedent's estate based upon a note executed by the decedent was properly disallowed where the original was not filed. Sec. 568, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Chancery Court of Adams County, Walter D. Coleman, Chancellor.
Joseph E. Brown, Jr., Natchez, for appellants.
I. The claim filed for probate by the appellants is adequately itemized. Boggan v. Scruggs, 200 Miss. 747, 29 So.2d 86; Duffy v. Kilroe, 116 Miss. 7, 76 So. 681; Foster v. Shaffer, 84 Miss. 197, 36 So. 243; Johnson v. Hannon, 211 Miss. 207, 51 So.2d 283; Sec. 568, Code 1942.
II. The Chancellor could have proceeded with the hearing of this cause notwithstanding the fact that no original instruments executed by the deceased were filed with the claim. Fidelity Mutual Life Ins. Co. v. Goldstein, 187 Miss. 285, 192 So. 584; Keiffer Bros. Co. v. Bank of Commerce, 105 Miss. 662, 63 So. 189; Sec. 568, Code 1942.
Gwin Gwin, Natchez, for appellee.
I. Appellant's claim must fail for want of written evidence and because insufficiently itemized.
II. Requirement of written evidence. Lehman Co. v. Powe, 95 Miss. 446, 49 So. 622; Strange v. Strange, 189 Miss. 349, 197 So. 830; Sec. 568, Code 1942.
III. Appellant's account is not sufficiently itemized. Finck Co. v. Brewer, 133 Miss. 9, 96 So. 402; First Columbus National Bank v. Holesapple-Dillman, 174 Miss. 234, 164 So. 232; Johnson v. Odom, 202 Miss. 213, 31 So.2d 120; Lehman Co. v. Powe, supra; Rice Stix Dry Goods Co. v. Mansour, 178 Miss. 621, 174 So. 63; Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958; Wilson v. Yandell, 174 Miss. 713, 165 So. 430.
IV. Probate of a copy of a note does not comply with Sec. 568, Code 1942. Levy v. Merchants Bank Trust Co., 124 Miss. 325, 86 So. 806; McCaslin v. Willis, 197 Miss. 366, 19 So.2d 751; McMahon v. Foy, 104 Miss. 309, 61 So. 421; Sec. 2106, Code 1906; Secs. 238, 568, Code 1942; 11 C.J.S., Bills and Notes, Sec. 662 pp. 106-108.
V. Appellee's answer to appellants' brief.
A. The claim filed for probate by the appellants is not sufficiently itemized. Boggan v. Scruggs, 200 Miss. 747, 29 So.2d 86; Duffy v. Kilroe, 116 Miss. 7, 76 So. 681; Foster v. Shaffer, 84 Miss. 197, 36 So. 243; Johnson v. Hannon, 211 Miss. 207, 51 So.2d 283.
B. The Chancellor could not have proceeded with the hearing of the case without the original note purportedly executed by the deceased. Fidelity Mutual Life Ins. Co. v. Goldstein, 187 Miss. 285, 192 So. 584; Keiffer Bros. Co. v. Bank of Commerce, 105 Miss. 662, 63 So. 189; McMahon v. Foy, supra; Sec. 568, Code 1942.
The appellants, R.P. Stewart and William E. Stewart, d/b/a R.P. Stewart Agency, probated their claim against the estate of James Carroll Williamson. The probated claim is as follows:
"Statement of Account of James Carroll Williamson with R.P. Stewart and William E. Stewart, d/b/a R.P. Stewart Agency:
"ALL POLICIES WITH THE TRAVELERS INSURANCES CO.
6/ 9/58 Final Audit Compensation Policy C208499, 3/9/57-58 _____________________________ $ 441.33
6/ 9/58 Final Audit Public Liability Policy MCS57536, 3/6/57-58 ___________________ 66.11
2/14/59 Final Audit — Fleet Coverage Policy MV886601, 10/1/57-58 ___________ 70.51
2/20/59 Final Audit — Compensation Public Liab. Policies UB7077096 DS6264620, 3/6/58 -11/18/58 _____________________________ 227.00
2/21/59 Check paid Britton Koontz to pick up policy on home ________________ 72.36
3/18/59 Final Audit Fleet Liab. Physical Damage Policy MV-4467640 _____________________ 416.99 _____________ $1,294.30
"CREDITS
8/ 4/58 Elimination of truck, Policy MV-886601 __________ $ 33.28 8/25/58 Check _____________________ 50.00 10/24/58 Check _____________________ 100.00 2/21/59 Return premium on Dwell. HG. Policy 563892 _______ 119.37 __________ 302.65 ______________ AMOUNT DUE US _________________ $ 991.65
Mrs. Vera E.W. Williamson, the administratrix of the estate of James Carroll Williamson, contested the claim on two grounds: (1) The claim is not based upon a demand of which there is written evidence or upon an account not itemized as required by Section 568, Miss. Code of 1942; and (2) if the claim, or a part thereof, is based on a written instrument, the original instrument was not filed as required by the statute.
Upon the hearing the court held that the claim as filed was insufficient to permit the introduction of evidence thereon or to support a decree allowing the claim. The chancellor disallowed the claim and from that decree appellants appeal.
(Hn 1) Section 568, supra, requires that proof of claim where there is no written evidence shall be made by itemized account or a statement of the claim in writing. We are of the opinion that the itemized statement in the present case is sufficient as to all items except the one for $72.36. As to each of the other items, it shows the due date, the kind of policy, the period covered, the policy number, and the amount due on final audit. This is sufficient to disclose the nature and amount of the claim so as to bar when paid an action therefor. Cf. Johnson v. Hannon, 211 Miss. 207, 51 So.2d 283.
(Hn 2) It is common knowledge that when an insurance agency writes certain kinds of insurance — as, for instance, workmen's compensation insurance — the policy provides that the insured pay an estimated premium and upon termination of the policy the earned premium shall be computed in accordance with the company's rules, rates and rating plans; and if upon final audit the computed premium exceeds the estimated premium paid when the policy was written, the insured shall pay the excess to the company or agent. If the itemized statement filed in this case is not sufficient and the insurance agency had to file all the items going into the final premium, the claim would have to include the policy, the company's manuals, and the audit of the insured's books. The statute never contemplated such requirement. It would be cumbersome and unreasonable to make such requirement for the probate of a claim based on an insurance agency's claim for premiums due on final audit. We are of the opinion that the claim as probated was sufficiently itemized. Upon contest of such claim, the claimant should have been allowed to offer evidence to support the claim.
(Hn 3) We are of the opinion that the chancellor was correct in disallowing the item of $72.36, as the liability was based upon a note executed by the decedent and the original was not filed. McMahon v. Foy, 104 Miss. 309, 61 So. 421. Therefore, it follows that the decree is affirmed in part, reversed in part, and remanded.
Affirmed in part, reversed in part, and remanded.
Lee, P.J., and McElroy, Rodgers and Jones, JJ., concur.