Opinion
No. 32731.
May 10, 1937.
1. EXECUTORS AND ADMINISTRATORS.
Account filed which failed to itemize merchandise or services for which account was incurred and contained nothing but record of charges, credits, and balances held insufficient to constitute claim against estate, since it furnished no basis for determining whether account was legal, or correct, notwithstanding affidavit was legal in form.
2. EXECUTORS AND ADMINISTRATORS.
Where account was so vague, indefinite, and uncertain, because of failure to itemize anything but charges, credits, and balances, as to be insufficient to constitute claim against estate, motion to amend filed after expiration of statutory period for probation of claims was properly overruled.
3. EXECUTORS AND ADMINISTRATORS.
Creditors having claims against deceased persons must strictly comply with the law.
4. EXECUTORS AND ADMINISTRATORS.
Rule that defective affidavit to claim against estate made in good faith and registered and allowed by clerk may under statute be amended at any time before estate is finally settled, applies only to affidavit and does not apply to claims which do not comply with the law (Code 1930, sec. 1672).
APPEAL from the chancery court of Lauderdale county. HON. A.B. AMIS, SR., Chancellor.
Neville Minniece, of Meridian, for appellant.
Appellant should have been permitted to amend its proof of claim by attaching a more fully itemized statement of account. It is the policy of the law in Mississippi to allow amendments liberally.
Sections 391, 1672, Code of 1930; Chapter 157, Laws of 1936.
The courts in construing a statute must seek the real purpose and intention of the Legislature in adopting the statute and give effect thereto, even to the extent of correcting the language therein used.
Gandy v. Public Service Corporation of Mississippi, 140 So. 687; Gunter v. City of Jackson, 94 So. 844; Spencer v. Myers, 44 N.E. 942; Grems v. Traver, 148 N.Y. Sup. 200, 149 N.Y. Sup. 1085; 59 C.J. 967, sec. 573; Ascher Baxter v. Edward Moyse Co., 57 So. 299; Cheairs v. Cheairs, 33 So. 414; Bankston v. Coopwood, 55 So. 48.
Why shouldn't a statute permitting the amendment of the affidavit attached to the claim be construed to necessarily permit the amending of the claim itself in the sense of the statute?
24 C.J. 353, sec. 1990; Scott Stamp Coin Co., Ltd., v. Leake, 99 P. 731.
The courts of other states have held that the term "affidavit" may include the statements of fact constituting the cause of action.
Woods v. Pollard, 84 N.W. 214; Wertz v. Lamb, 117 P. 90.
The courts will also look into the history of a statute to determine the intent of the Legislature.
White v. Miller, 139 So. 611; Cheairs v. Cheairs, 33 So. 414; Cudahy Co. v. Miller, 60 So. 574; Lehman v. Powe, 49 So. 622; Lehman v. George, 56 So. 167; Levy v. Merchants Bank Trust Co., 86 So. 807; Rogers v. Rosenstock, 77 So. 958.
In view of the purpose of this statute (Chapter 157 of the Mississippi Laws of 1926) the state of the law at the time of its enactment and the history of the statute, it must be construed to allow an amendment of the itemized account.
Appellant's itemized statement was a sufficient compliance with the statute (Mississippi Code of 1930, section 1671) to entitle it to probate an allowance.
Lehman v. Power, 49 So. 622; Fairley v. Fairley, 82 So. 267; Duffy v. Kilroe, 76 So. 681; Foster v. Shaffer, 36 So. 343; Ellsworth v. Busby, 160 So. 574; 24 C.J. 348, sec. 986; 1 R.C.L. 221, sec. 22; 31 Am. Rep. 75, note; 13 L.R.A. (N.S.) 529; Bloom v. McGrath Compton, 54 Miss. 249; Tishomingo Ins. v. Allen, 23 So. 305; Hart v. Potter, 31 So. 898; C. G.R.R. Co. v. Miss. Clinic, 120 So. 203.
Finck v. Brewer, 133 Miss. 9, is no authority in the matter of itemizing claims against estates.
Jacobson Snow, of Meridian, for appellee.
Section 1671, Mississippi Code 1930, Annotated, provides the only method by which a demand may be probated against the estate of a decedent in Mississippi.
Section 1672, Code above specified, provides where claims against deceased persons' estates shall be probated, the time allowed within which creditors may probate their claims, and further provides: "That where the affidavit is made in good faith and the claim is registered, probated and allowed by the clerk, but the affidavit is defective or insufficient, the court may allow the affidavit to be amended so as to conform to the requirements of the statute, at any time before the estate is finally settled," etc.
It will be noted the claim and the affidavit are considered two separate documents. The claim is the evidence or showing of the debt or demand and the affidavit is the written oath of the creditor, the requirement of the law in order that unscrupulous persons may not impose upon the estates of those who no longer can protect their estates. The affidavit shall "be attached" to the claim. The claim is one thing and the affidavit another. Both are required to be filed within the period of six months next after the first publication of notice to creditors and no claim can be filed subsequent to the six months' period. The claim must stand as probated once the period has elapsed and no amendment or change of the claim itself can be made.
The statute makes no provision for amendment of the claim itself, but only provides for amendment of the affidavit, and the reason therefor is clear and plain. To permit amendment of the claim itself would be to allow a change of the claim, and a different claim could or might be probated after the six months' period had elapsed and the gate opened to a creditor to switch claims after he was barred from presenting and filing same. Claims could be enlarged and changed and the opportunity afforded to defraud other timely creditors as well as the decedent's estate. Charges shown of accounts of one character of merchandise could be changed to another and the basis of the demand completely changed. The claim arises between the parties and is substance. The affidavit is an ex parte statement of the creditor as to the correctness of the claim, and is mere form supporting it.
When there is a statute on the subject, it prevails.
Jennings v. Lowry Berry, 112 So. 692; McMahon v. Foy, 61 So. 421; Persons v. Griffin, 73 So. 624; Cheairs v. Cheairs, 33 So. 414, 81 Miss. 662; Lehman v. Powe, 95 Miss. 456.
The court had held statutes governing the probate of claims against the estates of decedents should be strictly construed against creditors and that the provisions thereof were mandatory and should be allowed only when strictly followed when section 1672 in its present form was passed.
We submit the very wording of section 1672 bespeaks an intention to permit amendment of the affidavit only and not of the claim itself.
Cheairs v. Cheairs, 33 So. 414, 81 Miss. 662; Lehman v. Powe, 95 Miss. 456.
The statute should be strictly construed against the creditor.
Jennings v. Lowry Berry, 112 So. 692; Ellsworth v. Busby, 160 So. 574.
The case of Finck Company v. Brewer, 133 Miss. 9, 96 So. 402, is squarely in point.
Foster v. Shaffer, 36 So. 243; Gaulden v. Ramsey, 85 So. 109.
The claim of appellant is based upon an account and should have been itemized.
Finck Company v. Brewer, 133 Miss. 9; Pipes v. Norton, 47 Miss. 61; Ellsworth v. Busby, 160 So. 574; Rogers v. Rosenstock, 77 So. 958; Foster v. Shaffer, 36 So. 243; Cheairs v. Cheairs, 33 So. 414, 81 Miss. 662; Jennings v. Lowry Berry, 112 So. 692; Lehman v. Powe, 95 Miss. 456; McMahon v. Foy, 61 So. 421; Persons v. Griffin, 73 So. 624; McWhorter v. Donald, 39 Miss. 779.
Argued orally by Thos. Y. Minniece, for appellant.
Joseph Monsour died in Lauderdale county, Miss., in 1935, and on March 22, 1935, Linda E. Monsour, as executrix, filed notice to creditors to file claims against said estate within six months, which notice she duly signed and filed proof of publication thereof.
On April 30, 1935, Henry Rice, treasurer of the Rice Stix Dry Goods Company, filed what purported to be an account against the estate of Joseph Monsour, which account appears in the record as follows:
"Rice-Stix Dry Goods Company, Manufacturing Wholesalers,
"St. Louis, Mo., U.S.A., 4/30/35
"In account with Joseph Monsour, 2114 Front Street, Meridian, Miss.
"To Mdse. Net Cash Net. 2 per cent if paid within the dating, otherwise no No discount, discount.
Feb. 7/35 60d 284 99 48 77 7 60d 65 25 13 4/8 90 98 14 60d 14 23 15 60d 143 88 18 4/13 27 00 27 4/22 52 50 664 60 63 00 664 60 "In full to 4/25.35 727 60,"
to which was attached the following affidavit,
"The State of Missouri, City of St. Louis.
"Personally appeared before me, the undersigned, a Notary Public of said City, Henry Rice, Treasurer, who, on oath, says that the annexed claim of Rice-Stix Dry Goods Co. against Joseph Monsour, Meridian, Mississippi, deceased, for Seven Hundred Twenty Seven and 60/100 Dollars is just, correct and owing from the said 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; and that security has not been received therefor.
"H.M. Rice
"Sworn to and subscribed before me this the 30th day of April, A.D. 1935. George Rathke, Notary Public. My commission expires 10/13/35.
"Probated and allowed for $727.60 and registered, this the 16 day of May, A.D. 1935. Mack Cameron, Chancery Clerk."
After the expiration of six months from the date of publication of notice to creditors to file their claims, the appellant moved to amend the account and affidavit, which motion was, by the chancellor, overruled, holding that the affidavit was legal in form, but that the account was void because it was not itemized in accordance with the law.
We are of the opinion that the account was wholly insufficient to constitute a claim against the estate and that the chancellor was correct in disallowing it. One of the purposes of requiring accounts to be itemized is to enable executors or administrators of estates to see therefrom whether the claim is legal, and by investigation of the books and papers of the deceased to see how the matter between the deceased and the creditor stood, and, if the claim be found legal, to pay it. Another purpose is to enable legatees, devisees, and heirs to likewise determine the correctness of the account, and to enable courts to pass upon probated accounts.
In the case at bar, the account presented is so vague, indefinite, and uncertain as to be wholly insufficient to constitute a claim against the estate, and the motion to amend, having been filed after the expiration of the statutory period for probation of claims, came too late. Creditors having claims against deceased persons must strictly comply with the law. Cheairs' Ex'rs v. Cheairs' Adm'rs, 81 Miss. 662, 33 So. 414; Lehman v. Powe, 95 Miss. 446, 456, 49 So. 622; Jennings v. Lowery Berry, 147 Miss. 673, 112 So. 692; McMahan v. Foy, 104 Miss. 309, 61 So. 421; Persons v. Griffin, 112 Miss. 643, 73 So. 624.
What was said in the case of Finck Co. v. Brewer et al., 133 Miss. 9, 96 So. 402, with reference to itemized accounts is in point here. Section 1672, Code 1930, chapter 157, Laws 1926, providing that where an affidavit is made in good faith, and the claim is registered and allowed by the clerk, but the affidavit is defective, the court may allow such affidavit to be amended at any time before the estate is finally settled, is applicable alone to the affidavit and does not apply to claims against the estate which do not comply with the law.
Frequently, in other states, creditors are not sufficiently familiar with Mississippi forms so as to understand the requirements, and follow the forms and statutes of their own states, and lose their demands through technical defects.
The statute, section 1672, Code 1930, limits amendments to the affidavit, and does not apply to the account, and we do not feel that we are authorized to extend the statute in the case here, or in any other case where the account is totally insufficient to meet the requirements of the law.
The chancellor having held in accordance with these views, his judgment is affirmed.
Affirmed.