Opinion
No. 33305.
September 26, 1938. Suggestion of Error Overruled October 24, 1938.
1. EXECUTORS AND ADMINISTRATORS.
The probate of claim based on note which was filed with statutory affidavit entitled creditor to collect both principal and accrued interest, notwithstanding amount of claim which clerk inserted in affidavit covered only principal.
2. EXECUTORS AND ADMINISTRATORS.
The probate of a claim based on a note which provided for an attorney's fee of 15 per cent on unpaid principal and interest in event default was made in payment of note at maturity, if the note was placed in the hands of an attorney for collection, did not entitle creditor to the fee until after executors failed to pay the note and suit was filed on the claim, but creditor then became entitled to the fee without probate thereof, calculated on unpaid portion of principal and on accrued interest at time of rendition of judgment.
APPEAL from the circuit court of Harrison county; HON. WM. A. WHITE, Judge.
J.F. Galloway, of Gulfport, for appellant.
The clerk of the court registered the claim, probated and allowed it. He very properly did not include the interest and attorneys' fees because they were contingent upon the happening of future events. The interest could not be known or computed until the executors tendered payment in full; the attorney fees could not be probated because they were contingent upon the incurring of such fees by the holder of the note in case it became necessary to bring suit thereon. It is admitted that no interest has been paid to date, and the record shows, beyond any dispute, that it became necessary for appellant to place said note, evidencing said claim, in the hands of his attorney for collection, as appears from the letter by said counsel addressed to the attorneys for the executors wherein the executors and counsel were informed that said note had been placed in the hands of attorneys for collection. Notwithstanding said notice, payment was still refused, and it became necessary to bring this suit. The contingency, out of which the right of appellant arose to collect attorneys' fees, thus had happened.
Carothers v. Love, 152 So. 483, 169 Miss. 250; Park v. Granger, 51 So. 716, 96 Miss. 503.
Leaving out of view, everything else in the record, it is beyond dispute, that when this suit was filed, in May, 1937, that the contingency, which rendered the attorneys' fees collectible, had happened, and appellees had brought it about themselves.
Sledge v. Norfleet, 106 So. 519, 140 Miss. 779.
The liability of the estate of McCutchon to pay the specified attorneys' fees in the note, and the interest accruing after McCutchon's death, could only be fixed and made certain by the failure of appellees themselves to pay the note according to its terms. This they have failed to do, and the contingency has happened.
Counsel for appellees seem to think that this is a suit on a probated claim; such is not the case. It is a suit on the note of the decedent against his personal representatives brought about by nonpayment and within the four year statute, Section 2295 of the Code of 1930. The probation of the claim within the six months' period under the statute was merely to give notice to the administrators and inform them of the nature of the claim and its amount.
State v. Bowen, 45 Miss. 347.
If the registration and allowance of the claim had the force of a final judgment, then Section 1715 of the Code of 1930, which prohibited the bringing of a suit against an executor or administrator, until the expiration of six months from the date of the letters of administration; and Section 2295 of the Code of 1930 which provides that an action shall not be brought against an administrator or executor within four years after the qualification of such executor or administrator; and also Section 1712 of the same code, which gives executors and administrators the power to sue and be sued upon any personal actions which might have been maintained against the deceased, are meaningless and useless encumbrances among the statutes. All of these code provisions contemplate final adjudications of disputed claims upon a full and complete hearing in the courts having cognizance of the particular claim.
Carpenter v. Douglass, 104 Miss. 74, 61 So. 161.
White Morse, of Gulfport, for appellees.
In the absence of the probated claim, as an exhibit, or at least a failure to allege a due probate, registration and allowance, no evidence was admissible. A probate is a condition precedent to any recovery whatsoever. No cross appeal is taken, but the above proposition alone settles the question no greater recovery can be had in this case. It appears the original note did not remain on file at all times, as required by the statute. The certified copy left did not in any manner comply with the law.
However, be that as it may, when the executors examined the probated claims, they found a claim of appellant for $581.47, no more and no less. They paid 28% of this amount advising the appellant that it was 28%, and he accepted it as such. The court has rendered a judgment for 72% and that is all we owe. An executor cannot pay a claim unless probated.
Ridgeway v. Jones, 125 Miss. 22.
If appellant claimed interest he should have probated for interest.
A probated claim may not be amended after the expiration of six months from notice to creditors.
King v. Jones, 171 Miss. 886; Rice v. Monsour, 174 So. 73.
Having seen the original note was out of the clerk's office for long periods, we find the record fails to show the copy made when the original was withdrawn. This is material so that the court can see that the copy complied with Sec. 1671, Code of 1930. When the original is taken out and a copy left the clerk must endorse the copy "a true copy of the original this day exhibited to me."
Bank v. Fox, 165 Miss. 833.
This is why it was fatal for appellant not to exhibit his probated claim with his declaration.
The statutes on probating claims are mandatory as to substance.
Jordan v. Love, 171 Miss. 523; Deposit Guaranty Bank v. Jordans' Estate, 171 Miss. 332.
On February 26, 1934, Frederick B. McCutchon executed his promissory note in favor of the appellant, Owen P. Farrell, for the principal sum of $581.47, payable one year after date, together with interest at 6% per annum from date until paid, and also providing for the payment of an attorney's fee of 15% on the unpaid principal and interest in the event default was made in the payment of the note at maturity, and if the same was placed in the hands of an attorney for collection. Default was made in the payment of the note at maturity, and it was placed by the appellant in the hands of his attorney for collection, but McCutchon died during the month of July, 1935, without collection of the note having been made. Subsequent to his death, and within the time required by law, the appellant probated his claim against the estate by filing the original note in the office of the clerk of the chancery court, and by attaching thereto to the statutory affidavit in the form required for probating such a claim. The affidavit, however, stated the claim as "amounting to $581.47, which claim is attached hereto, and that it is just, correct and owing from the said Frederick B. McCutchon, Deceased," the amount having been inserted by the clerk, who testified that he assumed that the interest would be computed when the claim was paid. In other words, the interest which had accrued on the face of the note was not expressly included in the affidavit or in the amount for which the claim was allowed. The claim, as probated, also failed to include the 15% attorney's fee which had accrued on the note, and failed to show affirmatively that the note had theretofore been placed in the hands of the attorney for collection. The executors, who are the appellees here, refused to pay the claim in full, including the interest and attorney's fee, and denied liability of the estate for any amount except as to the principal sum provided for in the note, and on which they paid the sum of $162.81 prior to the filing of this suit. Upon an affirmance by the circuit court of Harrison County of a judgment rendered by the county court thereof, allowing a recovery only for the balance due on the principal, the appellant prosecutes this appeal.
In view of the fact that the proof discloses that the original note, bearing interest on its face, was attached to the affidavit, and referred to therein, when the claim was probated, and the requirements of the statutes were substantially complied with as to leaving a copy of the note on file when the original was withdrawn by the appellant subsequent to its probate, we are of the opinion that since there were at that time no credits shown thereon of the payment of any interest which had then accrued by the terms of the note, the claim for interest followed as an incident thereto; that the probate of the claim was sufficient to entitle the creditor to collect both the principal and interest from the estate; but that the probate was not then sufficient to entitle the appellant to collect the 15% attorney's fee, for the reason that the claim did not affirmatively show that the contingency had arisen upon which the attorney's fee would have become due and payable. If the executors had then tendered to the appellant the principal of the note and accrued interest, that would have saved the estate from liability for any attorney's fee for legal services rendered. But, having failed to pay or offer to pay the full amount of the principal and interest shown to be due on the face of the note attached to the affidavit of probate, the estate became liable for the attorney's fee of 15%, which thereafter accrued by the filing of this suit, on the unpaid portion of the principal of the note and on all of the accrued interest at the time of the rendition of the judgment, it not being necessary to probate the attorney's fee which accrued subsequent to the probate of the claim; and a judgment will be rendered here accordingly.
Reversed and judgment here for the appellant.