Opinion
No. 33619.
March 13, 1939.
1. EXECUTORS AND ADMINISTRATORS.
The burden was on claimants to establish their claims against deceased's estate by preponderance of evidence.
2. EXECUTORS AND ADMINISTRATORS.
Evidence sustained chancellor's determination rejecting claims against deceased's estate.
3. INSANE PERSONS.
An insane person is liable for necessaries.
4. EXECUTORS AND ADMINISTRATORS.
Action of court in requiring a claimant against deceased's estate to appear by attorney and refusing to permit claimant to appear by next friend on ground that claimant had not been adjudicated non compos mentis was not harmful error, where attorney acted for claimant with court's approval.
5. INSANE PERSONS.
An insane person is a ward of the chancery court; that is, the chancery court is his guardian.
6. EXECUTORS AND ADMINISTRATORS.
A claim against deceased's estate for doctor's bills incurred by deceased in his last illness should be separately probated on the affidavit of the original creditor.
7. EXECUTORS AND ADMINISTRATORS.
Where claimant presenting claim for doctor's bill incurred by deceased in his last illness, claimed that he paid physician to whom indebtedness was due and proof of claim was made by the claimant alone without establishing that payment of claim was made at deceased's request, refusal to allow claim was not error.
APPEAL from the chancery court of Marshall county; HON. L.A. SMITH, SR., Chancellor.
Glenn Fant, of Holly Springs, for appellants.
The court erred in refusing to permit T.W. Martin to sue by his brother and next friend. The only way in which a person of unsound mind can appear in court is by next friend.
Columbia Mutual Life Ins. Co. v. Jones, 133 So. 149, 160 Miss. 41; Gillespie v. Hauenstein, 72 Miss. 838; Finney v. Speed, 71 Miss. 32; Bull v. Dagenhard, 55 Miss. 602; Klaus v. State, 54 Miss. 644.
An insane person has been held to be in law a ward of the chancery court.
Mabry v. Hoye, 87 So. 4, 124 Miss. 144.
In the settlement of an estate in which a person of unsound mind is interested, the interests of such person should be protected by the court.
Vick's Executor v. McDaniel, 3 How. (4 Miss.), 337.
The court erred in disallowing the claim of T.W. Martin.
Certainly, if T.W. Martin had been under no disability he would have had a paramount right to the property in controversy, for the relation existing between him and Johnny Martin would have been a partnership.
Vaiden v. Hawkins, 6 So. 227; Hines v. Potts, 56 Miss. 346.
In the case at bar the fact of T.W. Martin's disability to make an express contract should not be used to defeat his rights. The court should have implied a contract to the extent necessary to protect him. If he had been of sound mind, there would have been a partnership. Being of unsound mind, we submit, his rights should not be diminished.
An administratrix of a deceased partner has no right to the assets of the partnership.
The personal property of the firm, upon the death of a partner, vests in the survivor; but in no event does the title to the partnership property devolve upon the administrator of the deceased partner.
Robertshaw v. Hanway, 52 Miss. 713; Hanway v. Robertshaw, 49 Miss. 758; Scott v. Searles, 5 S. M. (13 Miss.) 25; Clay v. Field, 34 Fed. 375, 138 U.S. 464, 34 L.Ed. 1044.
The burden was upon the administratrix claiming this property, and not upon the surviving partner.
Scott v. Searles, 5 S. M. (13 Miss.) 25.
This doctrine of law has never been questioned. We submit that it applies to the case at bar for the protection of T.W. Martin.
The court erred in disallowing the claim of J.N. Martin.
Pannell v. Glidewell, 142 Miss. 77; McCloskey Bros. v. Hood, 119 Miss. 92.
The court erred in disallowing the probated claim of J.N. Martin. No objection of the administratrix to the claim and no process on the creditor appears in the record. We submit that the decree as to this claim is, therefore, erroneous.
Section 1678, Code of 1930.
The objection to the claim on its merits, we submit, is not well taken. The claim shows that it is a doctor's bill paid by J.N. Martin, the brother of the deceased, who was also an heir. It was proper for J.N. Martin to do this.
Moffatt v. Loughridge, 51 Miss. 211; Rogers v. Rosenstock, 77 So. 958, 117 Miss. 144.
Dean Belk, of Holly Springs, for appellee.
The general rule is that when a suit is brought against a person, not an idiot, but who is of non-sane mind, if an infant, he must be defended by a guardian; if an adult, he must be defended by an attorney to be appointed by the court, if necesary.
The court did not err in requiring T.W. Martin to sue in his own person and make affidavit by and through his attorney, then in open court representing him.
14 R.C.L., sec. 64.
Did the court err in overruling the claim of J.N. Martin to the mule in controversy? The opinion of the Chancellor given at the conclusion of the evidence, held: "The court believes from the testimony in this cause that the claimant has failed to make out any right to this red mule and therefore his claim will be denied with costs even though the court should accept as evidence the averments of the claimant's pleadings, in view of the over weight of the testimony against the claim."
Chapman v. Federal Land Bank of New Orleans, 185 So. 586.
This estate was insolvent and the procedure therein with reference to claims against the estate is covered by section 1728, Code of 1930, as amended by Chapter 242, Laws of Mississippi of 1936. The notice thereon required was given. A hearing was had and the hereinafter cited authority read to the court and by the court read to J.N. Martin then present and decree rendered thereon on date of June 18th disallowing the claim. From the probated claim of J.N. Martin it will be seen that Dr. S.T. Rucker billed J.N. Martin for services rendered for John Martin in the sum of $150.
Physician's and drug bills necessarily incurred in a decedent's lifetime are debts against the deceased and where not paid by claimant at the request of deceased, they should be separately probated on the affidavit of the original creditors that they are just, correct and owing from the deceased in accordance with Code of 1906, section 3102 (section 1774, Hemingway's Code).
Gauldin v. Ramsey, 123 Miss. 1, 85 So. 109; McWhorter v. Donald, 39 Miss. 779, 80 Am. Dec. 97; Persons v. Griffin, 112 Miss. 643, 73 So. 624.
It will be noted that John N. Martin, not Dr. S.T. Rucker, probated this claim against the estate for this decedent without any affidavit as to it being just, correct and owing from the deceased by Dr. S.T. Rucker, was not transferred to him by Dr. S.T. Rucker and gives no information other than that it was paid by the said J.N. Martin as a free volunteer.
It is therefore definitely not a proper probate against the estate of John Martin and the court did not err in disallowing this claim.
Mrs. DeJarnette is administratrix of the estate of her deceased uncle, John Martin. The estate is insolvent and so declared by the chancery court. The personal property of the estate consists of farm implements and stock and household and kitchen furniture, inventoried at $409.50.
Appellant, J.N. Martin, claimed title to one mule inventoried as part of the estate, and as next friend for his brother, T.W. Martin, alleged to be non compos mentis, claimed title to a one-half undivided interest in the balance of the property inventoried. And, in addition, J.N. Martin probated and sought to have allowed against the estate a claim of $150, which he contends was owed him by his deceased brother. The court disallowed all three of the claims. From that decree, this appeal is prosecuted.
The administratrix petitioned for an order of the court to sell the estate, real and personal, to pay debts. Process on the petition was served on all necessary parties, among whom are appellants. In answer to the application to sell, appellants made the claims above referred to.
John Martin, the deceased, and his brother, T.W. Martin, were elderly bachelors, perhaps in their seventies. They lived together on a little farm in Marshall County, consisting of about 126 acres, and had so lived for a good many years. About twenty-six acres of the land belonged alone to John Martin, the deceased. Eighty acres of the land belonged to the deceased, his brother, T.W. Martin, and a sister of theirs, Mrs. Fick, each owning a one-third undivided interest therein. The evidence tended to show that T.W. Martin was a non compos mentis and had been since he was sixteen years of age. They worked the farm with their own hands, except sometimes they had a wage hand and sometimes a tenant. John Martin did the housework including the cooking, and, on account of ill health, had done but little work in the field for some years. T.W. Martin did most of the work on the outside. He worked in the field, cut the firewood, and did other necessary farm work. However, he did no plowing on account of the fact that he was inclined to be cruel to livestock, which was attributed to his mental condition. They managed to make the bare necessities of life. They were sometimes assisted by their sister, Mrs. Fick. The evidence tended to show that the entire probated indebtedness charged against the estate of John Martin was incurred on behalf of both of them.
T.W. Martin had not been adjudicated a non compos. At the beginning of the trial the court ruled that without such an adjudication his brother, J.N. Martin, had no right to appear in his behalf in the capacity of next friend, but that his claim would be retained signed by his solicitor. This was done. There followed a full hearing on the evidence pro and con. The chancellor held that the evidence was insufficient to establish either J.N. Martin's claim to the mule or T.W. Martin's to one-half undivided interest in the personal property; that the burden was on them to establish their claims by preponderance of the evidence, which burden they had failed to meet. This is not a case where it can be said with confidence that the chancellor's findings were against the overwhelming weight of the evidence.
And furthermore, if each of the brothers owned a one-half undivided interest growing out of an implied partnership between them, as contended, the same result would follow. Hines v. Potts, 56 Miss. 346. The evidence of such a partnership tended to prove with equal force that the indebtedness incurred in the joint enterprise was for the benefit of both partners, and that it was for necessaries suited to their condition. An insane person under the law is liable for necessaries. Fitzgerald v. Reed, 9 Smedes M. 94, 17 Miss. 94.
There was no harmful error in the court's requiring T.W. Martin to appear by attorney, and refusing to permit him to appear by next friend on the ground that he had not been adjudicated non compos mentis. An insane person is the ward of the chancery court. In other words, the chancery court is his guardian. Martin's attorney acted for him with the approval of the court. It is immaterial whether he was designated as attorney or next friend.
J.N. Martin's probated claim for $150 was for a doctor's bill incurred by the deceased in his last illness. The proof of the claim was made by J.N. Martin alone. He claimed to have paid the physician to whom the indebtedness was due. There was no evidence that J.N. Martin paid the claim at the request of the deceased. Such a claim under the law should be separately probated on the affidavit of the original creditor. The court, therefore, did not err in refusing to allow the claim. Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109.
Affirmed.