Opinion
No. 35255.
April 5, 1943. ON SUGGESTION OF ERROR.
1. EXECUTORS AND ADMINISTRATORS.
A claim against the estate of a decedent, although duly probated and registered, must be established by clear and reasonably positive evidence if objected to by administrator (Code 1930, sec. 1671).
2. EXECUTORS AND ADMINISTRATORS.
Where a claim against the estate of a decedent, to which affidavit is attached, is presented to the clerk for probate, it becomes clerk's mandatory duty to admit claim to probate if affidavit complies with form described by statute (Code 1930, sec. 1671).
3. EXECUTORS AND ADMINISTRATORS.
The burden of establishing a claim, against an estate, if contested, is upon the claimant although the claim has been admitted to probate by the clerk (Code 1930, sec. 1671).
4. EXECUTORS AND ADMINISTRATORS.
Where a claim filed against the estate of a decedent was contested by administratrix, by proceeding first with her testimony administratrix did not assume burden of proof and she was not "estopped" from contending on appeal that burden of proof was upon claimant, on theory that she was not permitted to adopt theory on appeal contrary to the one adopted in lower court (Code 1930, sec. 1671).
5. EXECUTORS AND ADMINISTRATORS.
A decree overruling administratrix's contest of claims filed against estate was reversed where, in determining the issue, the chancery court gave undue legal effect and evidentiary weight to the fact that the claims had been admitted to probate (Code 1930, sec. 1671).
APPEAL from chancery court of Alcorn county, HON. JAMES A. FINLEY, Chancellor.
Thos. H. Johnston, of Corinth, for appellant, on suggestion of error.
The record in this case shows without doubt that the chancellor in trying the case held, in effect, that the probate of a claim against the estate of a decedent is prima facie evidence of its correctness and validity, and that the burden of the proof was upon the objector, the appellant in this case, to overcome this presumption, and to show that the claims were incorrect or invalid. This misconception of the law on the part of the chancellor is fully shown in his opinion and decree; for all the chancellor decided in this case was that the testimony offered by the objector, the appellant, taken together with that of the claimant, the appellee, was not sufficient to overcome the presumption of the correctness and validity of the claim arising from the fact of its probate. Nowhere and at no time does the chancellor find that the evidence offered by the claimant, appellee, was sufficient to establish his claims, but only that the evidence was not sufficient to overcome the probate of the claims.
Where a claim has been duly probated and registered against the estate of a decedent and is objected to by either the administrator, or by any other person who is authorized by the statute to except or object to such claim, the probate and registration of the claim amounts to nothing, and the burden of the proof is upon the claimant to establish his claim by competent evidence.
North v. Lowe, 63 Miss. 31.
It is our contention that appellant did not attempt to assume the burden of proof in this cause, as inferentially shown by the record; but if she had assumed the burden of proving that the probated claims of appellee were incorrect, and, in the opinion of the chancellor, she had failed to do this, that this would be of no help to appellee, for the burden of proof was still upon him to establish his claims against the estate by competent evidence, and nowhere did the chancellor find this to be true but allowed the claims against the estate only on the theory that all the evidence in the case failed to overcome the probate of the claims; and for this palpable error of law on the part of the chancellor, especially in view of the fact that a survey of the entire record impressed this court that an unjust and unrighteous result had been reached, this suggestion of error should be sustained and the case be reversed.
G.C. Moreland and W.C. Sweat, both of Corinth, for appellee, on suggestion of error.
The appellant is in no position to contend in this court that the court below committed error in placing in his opinion and decree that the burden of proof was on the appellant. By her acts and conduct throughout the trial in the court below she assumed the position before the chancellor that the burden of proof was upon her and this is shown by the record before the court in this cause. If it be assumed that the court below committed error the appellant by her position before the court led the court into that error and she will not now be heard to assume a different position in this court and have error fastened upon the court below.
It is the universal rule generally upheld in all appellate courts that, except as to jurisdictional questions or some such dominant question as lies at the very foundation of the case, the appellant is confined on appeal to the position which he assumed in the trial court.
Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Gulf S.I.R. Co. v. Boswell, 85 Miss. 313, 321, 38 So. 43; Illinois Cent. R. Co. v. Sumrall, 96 Miss. 860, 867, 51 So. 545; 2 Ency. Pl. Pr. 516; 4 C.J. 710, 712; Elliott App. Prac., p. 410 et seq.
If the court had not been led into this incorrect statement as to the law it could have made no difference and would have made no difference in the decree which would have been rendered, for the reason that according to the uncontradicted testimony he reached the only conclusion that he could have reached, especially in view of the fact, as is shown in his opinion, that he gave little or no weight to the testimony of the so-called experts in which they gave it as their opinion that the signature on these notes which are probated is not the same as the signature on the registration book.
ON SUGGESTION OF ERROR.
This is an appeal by an administratrix from a decree of the chancery court overruling her contest of certain claims in favor of appellee which had been probated against the estate and adjudicating them to be obligations of the estate.
The initial opinion herein stated that this case involves only questions of fact, and that, in the last analysis, is correct, but it is suggested that in determining the facts the chancellor gave undue legal effect and evidentiary weight to the fact that the claims had been admitted to probate. And that is also correct, because the chancellor, in his opinion, said: "Now the law as I understand it, for the probation of claims, is prima facie of its correctness and under these circumstances, the Court is bound to hold that the testimony of the Objectors is insufficient together with that of the Claimants and that presumption will overthrow the claim." That is a misconception of the effect of a probated claim. In North v. Lowe, 63 Miss. 31, Judge CAMPBELL said "The fact that the accounts had been probated and registered amounted to nothing, and proof of their correctness was necessary." That case was cited and the announcement approved in Nicholson v. Dent, Robinson and Ward, 189 Miss. 658, 198 So. 552, 554, where it was further said "that a claim against the estate of a decedent, although duly probated and registered, must be established by clear and reasonably positive evidence, if objected to by the administrator." In Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923, the court held: "Whenever a claim against the estate of a decedent, to which an affidavit in accordance with section 1671, Code 1930, is attached, is presented to the clerk for probate, all he has to do is to compare the affidavit with the form prescribed therefor by the statute, and, if it complies therewith, it then becomes his mandatory duty to admit it to probate, evidencing that fact by the ministerial action of attaching his certificates thereto in the form provided by the statute, . . ." The burden of establishing a claim, if contested, is upon the claimant although the claim has been admitted to probate by the clerk. The extent of the influence of this misconception in bringing the chancellor to the conclusion he did reach we cannot know, but it is clear from the above quotation from his opinion that it was considerable.
But appellee says that without that element no other conclusion could have been reached under the proof herein. Considering the relation of the parties, the nature and probative value of, and the conflicts in, the evidence, we cannot bring ourselves to agree to that contention, and we cannot say that without that element the chancellor would have reached the same or a different conclusion.
The record discloses that on the hearing below the administratrix proceeded first with her testimony contesting the claims, and appellee says that she thereby assumed the burden of proof and adopted the legal effect of a probated claim announced in the chancellor's opinion, and she is estopped to take a different position here, citing Williams v. Lumpkin, 169 Miss. 146, 152 So. 842, and other cases, to the effect that a litigant will not be permitted to adopt here a theory contrary to the one adopted and relied upon in the lower court. The record does not disclose why the administratrix pursued this course, nor whether it was voluntary or at the suggestion of the court. But aside from whether the rule would apply to a proceeding of this kind, or bind an administratrix, who is the representative of the estate, the heirs and creditors (who themselves have the right to contest probated claims), which we do not decide, we do not think the rule applies and extends to the question under consideration — that is, the effect and weight the court erroneously attached to the mere fact the claims had been admitted to probate. It is not shown that appellant was responsible for this error.
The former opinion and judgment rendered and entered herein will be withdrawn and set aside and this opinion and a judgment in accordance herewith substituted therefor.
Reversed and remanded.