Opinion
No. 31495.
January 21, 1935.
EXECUTORS AND ADMINISTRATORS.
Probate of note withdrawn by claimant held void for absence of clerk's seal on certificate on copy of note, although certificate of probate was sealed (Code 1930, section 1671).
ON SUGGESTION OF ERROR. (Division A. Feb. 18, 1935.) [ 158 So. 457. No. 31495.]EXECUTORS AND ADMINISTRATORS.
Statute authorizing court to allow amendment of defective or insufficient affidavit of claim against a decedent's estate at any time before estate was finally settled held not to authorize court to permit clerk to attach seal to his certificate more than six months after expiration of time for probating of claims (Code 1930, section 1672).
APPEAL from Chancery Court of Marshall County.
L.G. Fant, Sr. Jr., both of Holly Springs, for appellant.
The probate of the claim complies fully with the statute.
Mississippi Code 1930, section 1671; Merchants Manufacturers Bank of Ellisville v. Fox, 165 Miss. 833.
The probate of the claim complies fully with the dictum in the case of Bank v. Fox, 165 Miss. 833.
One ground of objection sustained by the chancery court to the probate in the case at bar is that the certificate does not contain the words "this day exhibited to me." It is submitted that these words are not essential to a valid certificate, because the fact that the clerk certified to the copy as a true and correct copy of the original shows without doubt, without question, and as a matter of record, that the original was duly presented to him.
Davis v. Blumenburg, 107 Miss. 432, 65 So. 503.
The probate of the claim is valid.
Bank v. Fox, 165 Miss. 833; Mississippi Code 1930, 1672. Smith Smith, of Holly Springs, for appellee.
Section 1674 of the Code of 1930 provides: "It shall be the duty of an executor or administrator to speedily pay the debts due by the estate out of the assets, if the estate is solvent, but he shall not pay any claims against the deceased, unless the same has been probated, allowed, and registered."
It has always been the rule in the state of Mississippi that the statute as to the method of probating claims against the estates of dead people shall be strictly construed against creditors.
Jennings v. Lowrey Berry, 112 So. 694; Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Walker v. Nelson, 87 Miss. 268, 39 So. 809; Saunders v. Stevenson, 94 Miss. 676, 47 So. 783; Lehman v. Powe, 95 Miss. 446, 46 So. 622; Lehman v. George, 99 Miss. 798, 56 So. 167; Cudahy Co. v. Miller, 103 Miss. 435, 60 So. 574; McMahon v. Foy, 104 Miss. 309, 61 So. 421; Stephens v. Dunlap, 108 Miss. 690, 67 So. 160; Parsons v. Griffin, 112 Miss. 643, 73 So. 624; Levy v. Bank, 124 Miss. 325, 86 So. 807; Manufacturers Bank of Ellisville v. Fox, 165 Miss. 833, 147 So. 789.
Where a statute has been construed by the highest court and afterwards re-enacted in substantially the same terms, the Legislature by such re-enactment adopts along with the statute, such construction.
White v. Ill. Cent. R.R. Co., 99 Miss. 651, 55 So. 593; Shotwell v. Covington, 69 Miss. 735, 12 So. 261; Wetherbee v. Roots, 72 Miss. 355, 16 So. 902.
Chapter 304 of the Laws of 1934, significantly enough re-enacts section 1761, without change except in one particular. That particular amendment is manifestly designed to meet the decision of this honorable court in Stephens v. Dunlap Mercantile Company, 112 Miss. 524, 73 So. 570, which held that without the endorsement as to the probating, allowance, and registering, of the claim endorsed thereon by the clerk, the claim was lifeless.
There was what purports to be a copy of a promissory note placed in the file, but the record is silent as to whether the original thereof was ever presented to the clerk.
Tyson v. Utterback, 154 Miss. 381, 122 So. 496; Burton v. Cramer, 123 Miss. 848, 86 So. 578.
Argued orally by Lester G. Fant, Jr., for appellant.
This is an appeal from a decree that the probate of a promissory note against the estate of a decedent is void.
The note was presented to the chancery clerk by the owner, accompanied by a request for the withdrawal thereof. The clerk attached a copy of the note to the owner's affidavit thereto and the clerk's certificate allowing the claim. On the back of the note there appears the following certificate: "I hereby certify that this is a true and correct copy of the original" — which certificate was signed by the clerk, but his seal was not impressed thereon. Such a seal does appear on the clerk's certificate of allowance of the claim. The original note was returned by the clerk to the owner with the following thereon signed by him: "Probated and withdrawn this the 11th day of March."
The objections made to the probate of this claim are: (1) That the certificate of the clerk on the back of the copy of the note probated does not contain the words "this date exhibited to me," and (2) the seal of the clerk does not appear thereon. The first of these objections will be left out of view, and no opinion will be expressed thereon. The absence of the seal authenticating the clerk's signature to the certificate is fatal. The seal appearing on the certificate to the probate does not cure this defect; for section 1671, Code 1930, which here governs, requires a certificate to the copy of the note separate and distinct from the certificate of probate thereof, from which it necessarily follows that the clerk's signature to each of the certificates must be authenticated by his seal of office.
Affirmed.
ON SUGGESTION OF ERROR.
We have carefully reconsidered our former holding herein, and cannot recede therefrom.
The appellant requested the court below to permit the clerk to attach his seal to the certificate more than six months after the expiration of the time for the probating of claims. This request was denied. The appellant now says that we should have dealt with that request in our former opinion and held that the amendment should have been allowed, admitting that this assignment of error was "not sufficiently presented to the court in the original argument." This admission is correct, but we will not hold counsel thereto.
The question thus presented is foreclosed by former decisions of this court, among which are Lehman v. George, 99 Miss. 798, 56 So. 167; Stevens v. D.R. Dunlap Mercantile Co., 112 Miss. 524, 73 So. 570; Merchants' Manufacturers' Bank v. Fox, 165 Miss. 833, 147 So. 789. The statute under which Lehman v. George, supra, was decided was section 2107, Code 1906. The one-year period of limitation therein was reduced by chapter 303, Laws 1920, to six months. By chapter 157, Laws 1926, this section was amended by adding thereto the following: "Provided, 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 amended so as to conform to the requirements of the statute, at any time before the estate is finally settled, whereupon the probate shall be as effective and the claim as valid against the estate as if the affidavit had been correct and sufficient, in the first instance." This chapter was brought forward in the Code of 1930 as section 1672 thereof.
Counsel for the appellant say that: "It is not contended that this statute applied in words to the case at bar; but it is respectfully submitted that it shows the intention of the legislature that a failure of technical form should not defeat a valid claim when the statute is substantially complied with," and that conforming to this intention the court should now permit amendments to probated claims of the character here in question to be made. We cannot so hold. The statutory permission to amend is expressly limited to defects in affidavits, and, of course, we are without power, ourselves, to further amend statutes. This exact question was presented in Merchants' Manufacturers' Bank v. Fox, supra, and the court's attention was called to the hereinbefore stated amendment to the statute.
Overruled.