Opinion
No. 33877.
January 2, 1940.
1. EXECUTORS AND ADMINISTRATORS.
Where an executor or administrator is sued on a probated account against the estate, some of the items of which appear on the face of the account, as probated, to have been barred by limitation at time of decedent's death, and the executor or administrator pleads the statute of limitations in bar, the claimant cannot in reply thereto allege and offer evidence of facts not appearing on the probated claim disclosing that decedent was estopped at time of death from pleading limitations thereto.
2. EXECUTORS AND ADMINISTRATORS.
A probated claim must on its face show a prima facie right in claimant to recover amount claimed and must disclose the nature and amount of claim with sufficient precision to bar, when paid, an action therefor.
3. EXECUTORS AND ADMINISTRATORS.
A probated claim which appears on its face to have been barred by limitations does not authorize payment by the executor or administrator, because failing to disclose a prima facie liability therefor.
APPEAL from chancery court of Yazoo county; HON. M.B. MONTGOMERY, Chancellor.
Barbour Barbour, of Yazoo City, for appellant.
We respectfully submit to the court that the effect of those portions of the amended bill alleging a new promise after bankruptcy and alleging acts of the decedent constituting an estoppel to himself and his personal representative to plead the Statute of Limitations was not the statement of any new, different, or separate cause of action or basis of recovery or claim against the estate of said decedent, but was the affirmative statement of matters which rendered and kept the claim as originally stated in full force and effect in its entirety and in its original character and identity, despite the plea of the Statute of Limitations and the anticipated plea of discharge in bankruptcy, which the executrix declined to plead, in an attempt to avoid giving validity to the said probated claim, as originally probated, and as sued for and upon throughout this cause.
The learned chancellor based his ruling that a new and distinct cause of action had been pleaded in this cause upon the ruling of this court in the case of United States Fidelity and Guaranty Company v. Blanchard, 181 So. 134. We respectfully submit that the chancellor has misinterpreted the language of the court in the Blanchard case, and has sought to give it a meaning and effect far beyond the inherent sense of the opinion and beyond the intention of the court which rendered the decision.
We submit further that the learned chancellor erred in his implied ruling that there could be no recovery on the new promise after bankruptcy for the reason that the statement of the new promise was the statement of a new and distinct cause of action from the account itemized in the probated account.
The complainant seeks enforcement of his probated account as originally filed and does not ask the court to give him any relief because a constructive fraud was worked upon him by the representations of W.M. Puffer. He simply states in his amended bill that the account, as originally probated, is in full force and effect despite the lapse of time, and that the three-year Statute of Limitations is inapplicable to his probated account because W.M. Puffer estopped himself and his personal representatives from interposing such a defense and that his probated account should be enforced and ordered paid just as though the statutory period of time had never elapsed
Izard v. Mikell, 173 Miss. 770, 163 So. 498; 37 C.J. 725, par. 44; 37 C.J. 1200, par. 700; 37 C.J. 1231, par. 746; 37 C.J. 1233, par. 747.
We cannot conceive that the avoidance of the affirmative plea of the Statute of Limitations could be regarded as new theory of the case or a different basis of action. We further submit that when that defense was interposed by the executrix, the complainant had every right to show those facts which voided and nullified the affirmative defense, and that in doing so, he did not invalidate or change the probated account as the basis of recovery but rather strengthened the probated account in its original form.
The courts of Mississippi have always held that an action based on a debt renewed by expressed promise after bankruptcy, was an action on the original debt, and not an action based solely on the fact of the new promise.
Berry v. Magee, Gibson Magee, 105 So. 518; Thompson v. Hill, 152 Miss. 391; Jones v. Coker, 53 Miss. 195; Brown, Randall Co. v. Broach, 52 Miss. 536; Jacobson, Wolffe Co. v. Horne, 52 Miss. 185; Torrey v. Kraus, 43 So. 184; 7 C.J. 413, par. 732; 7 C.J. 414, par. 733.
In Henderson v. Ilesley, 11 S. M. 9, 49 Am. Dec. 41, it is held that no particular form is necessary to probate an account but that the formal probate should be sufficient to give such notice to the executor of the existence, character and amount of the claim so that he may pay that particular claim with reasonable certainty; and in Lehman v. Powe, 49 So. 622, 95 Miss. 446, the court stated that the probate of a claim should be in such form as to show "the nature and amount of the claim with such certainty as to bar action therefor when paid."
We respectfully suggest that the probated claim in this instance fully complies with the requirements pointed out in the two above cases, and fully stated every essential fact that could have been required of the claimant if he had been filing a suit at law upon the balance after renewal from the discharge in bankruptcy and after the estoppel of defendant to plead the Statute of Limitations.
We do not believe that this court will require a different form and standard of pleading in the probating of accounts from that which the court has suggested in the filing of suits in the courts.
Bridgforth Love and J.G. Holmes, all of Yazoo City, for appellee.
A person desiring to probate his claim against the estate of a deceased person shall present to the clerk the written evidence thereof, if any, or if there be no written evidence thereof, an itemized account, or a statement of the claim in writing.
Sec. 1671, Code of 1930.
The probated claim must by its terms or on its face evidence the fact that a liability exists on the part of the estate in favor of the claimant.
Lehman v. Powe, 95 Miss. 446; Wilson et al. v. Yandell et al., 174 Miss. 713, 165 So. 430.
A claim probated against an estate cannot be amended, aside from the affidavit thereto, after the expiration of the six-month period allowed for probate.
Rice, Stix Dry Goods Co. v. Monsoun, 178 Miss. 621, 174 So. 63; U.S.F. G. Co. v. Blanchard, 181 So. 134.
No recovery can be had on a claim which is at variance with the claim originally probated.
First Columbus National Bank v. Holesapple-Dillman, 174 Miss. 234, 164 So. 232; U.S.F. G. Co. v. Blanchard, 181 So. 134.
After a claim has been probated and after the expiration of the six-month period allowed for probate, no new or additional material facts can be brought in as a basis for recovery.
U.S.F. G. Co. v. Blanchard, 181 So. 134.
An administrator or executor cannot waive the Statute of Limitation as to a probated claim and is without power or authority to pay a probated claim which is barred by the Statute of Limitations.
Trotter v. Trotter, 40 Miss. 704; Byrd, Administrator, v. Wells, 40 Miss. 711.
Estoppel operates only in favor of one who in reliance on an act or representation changes his position to his prejudice.
Bridge Creek Drainage Dist. v. Webster, 168 Miss. 115, 150 So. 915; Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726.
The ultimate and controlling question presented by this record is this: Where an executor or administrator is sued on a probated account against the estate he is administering, some of the items of which appear on the face of the account, as probated, to have been barred by the Statute of Limitations at the time of the decedent's death, and the executor or administrator pleads the Statute of Limitations in bar thereof, can the plaintiff in reply thereto allege, and offer evidence of, facts not appearing on the probated claim disclosing that the decedent was estopped at the time of his death from pleading the Statute of Limitations thereto?
This question must be answered, as did the court below, in the negative.
"One of the objects of the statute in requiring claims to be probated, allowed, and registered is that the administrator and all other parties concerned may ascertain what debts are claimed to be due by the estate, and act intelligently in determining whether the same are just and should be paid or whether the same should be contested. The statute also clearly contemplates that, in presenting claims against the estate of a decedent, the evidence or statement of same probated must on its face show a prima facie right in the claimant to recover from the estate the amount claimed, and that it must disclose the nature and amount of the claim with sufficient precision to bar, when paid, an account therefor." Lehman v. Powe, 95 Miss. 446, 49 So. 622, 623; Wilson v. Yandell, 174 Miss. 713, 165 So. 430. A probated claim which appears on its face to have been barred by limitations at the time of the decedent's death not only fails to disclose a prima facie liability therefor against the decedent's estate, but, in fact, negatives such liability, for the executor or administrator of the estate is without authority to pay such a claim. Henderson v. Ilsley, 11 Smedes M. 9, 19 Miss. 9, 49 Am. Dec. 41; Sanders v. Robertson, 23 Miss. 389, 1 Cushm. 389; Bingaman v. Robertson, 25 Miss. 501, 3 Cushm. 501; Trotter v. Trotter, 40 Miss. 704; Byrd v. Wells, 40 Miss. 711; and Huntington v. Bobbitt's Heirs, 46 Miss. 528.
Affirmed.