Opinion
No. 29872.
June 6, 1932. Suggestion of Error Overruled September 26, 1932.
1. EXECUTORS AND ADMINISTRATORS. Administrator, whose individual claims were barred because not timely filed, could not have claims for items accruing before decedent's death allowed under guise of accounting ( Code 1930, section 1677).
It appeared that, on remand of case, administrator sought to get advantage of his claims, disallowed on former appeal because not probated within six months, by filing accounting as his deceased mother's agent for period of six years before her death, her estate then being administered, thus getting credit for same accounts which had been disallowed on former appeal.
2. PARENTS AND CHILD.
Son's agency for mother ceased on her death, and he could not recover under agency contract for services rendered thereafter.
APPEAL from Chancery Court of Adams County.
L.T. Kennedy, of Natchez, for appellants.
The death of the principal terminated the agency, and when the person who had theretofore acted as agent became administrator, his duties and rights as agent terminated and his rights and duties as administrator began.
It is the statutory duty of an administrator to speedily collect all debts due the intestate and therefrom to pay all probated claims, expenses of the administration and settle the estate.
The common law doctrine which permitted an administrator to retain assets of the estate in the payment of his own claim is superseded by section 2109 of the Code of 1906, which prevents retainer and provides that the claim of an administrator shall be probated and passed by the court before it can be paid.
The administrator has no right to pay, nor to take credit in his final account for the payment of claims against the estate arising during the life of the intestate unless the same is probated and registered as required by law.
The administrator cannot pay a claim unless probated.
The administrator cannot expend money as such during the administration except by order of court.
Engle Laub and L.A. Whittington, all of Natchez, for appellee.
We most respectfully say to the court that when this matter was referred back to the lower court it was not referred back for any other purpose than to determine whether or not if D.G. Minor, individually and as agent of his mother, should account only for the three year period instead of the eight year period would it be to his advantage and to the disadvantage of the estate.
McDowell et al. v. Minor, 131 So. 278, 158 Miss. 788.
The law allows a man to be honest, and to pay an honest debt, however stale and ancient it may be. He may interpose the statute of limitations, but he may waive it also. The law does not compel him to resort to this defense, nor can others insist upon it for him.
Lewis v. Buckley, 73 Miss. 58.
Where there shall have been mutual dealings between two or more persons, and one or more of them shall die before an adjustment of such dealings, the lawful demands of such parties against each other shall be a good payment, or set-off, to the amount thereof, notwithstanding the estate of one or more of such deceased persons shall be insolvent, and only the balance due shall be the debt.
Section 544, Hemingway's Code of 1927; Section 539, Code of 1930; Receivers, etc., Bank v. Gas Light Co., 23 N.J. Law 283, 304; Herschel v. Barnet, etc., 27 L.R.A. (N.S.) 812.
Under the ancient common law rule, the naming of an executor served to extinguish any claim the estate had against him, on the theory that by naming such debtor the executor of his estate, a testator voluntarily destroyed such debt since he destroyed the means of collecting it.
11 R.C.L. 113 et seq.; sec. 2040, Code of 1906.
In McDowell v. Minor, 158 Miss. 360, 130 So. 484, we held that administrators must publish notice to creditors of the estate to probate all claims against estates within six months, and that administrators must probate their own claims within the six months' period, and that administrators must probate their individual claims whether they speedily publish notice or not, that they cannot delay to make prompt publication of notice to creditors and thereafter take advantage of delay in their own behalf, and that claims against the estate not probated within the statutory period could not be allowed. To the same effect is McDowell v. Minor, 158 Miss. 360, 130 So. 485.
On a remand of the case, the administrator sought to get advantage of his claims disallowed on the former appeal because not probated within the six months' period, by filing an accounting as agent of his mother for a period of six years anterior to her death, her estate being then administered, thus getting credit for the same accounts which had been disallowed on the former appeal.
It is clear that this cannot be done. When the administrator in the case at bar failed to probate his claims against the estate within the statutory period, his claims became barred. By section 1677, Code 1930, an executor or administrator shall not be allowed to retain any part of the assets in payment of his own claim against the deceased, unless the same be probated and registered as other claims and passed by the court, and every such claim shall stand upon an equal footing with other claims of the same nature.
It was therefore error for the chancellor, under the guise of an accounting, to allow to the administrator the items of his claim which had accrued prior to the death of the person whose estate was being administered.
It is contended by the appellee, however, that the case of McDowell v. Minor, 158 Miss. 788, 131 So. 278, authorizes an accounting to be filed and credits to be allowed, provided the amount shown to be due the estate was more favorable to the estate than the account of the administrator.
We do not think that decision authorized the chancellor to allow the items of an account not probated and allowed as required by law. Such items cannot be used against the estate, not having been probated as required. In effect, they ceased to be liabilities against the estate when the administrator failed to probate them.
On filing an inventory, had the administrator so desired, he could have set down all property in his hands with his claims against the estate in the form of an account, have had the items there probated and presented for consideration, and allowance by the court; but, having permitted the time to pass in which his claims could be probated and allowed, he cannot now have the benefit of them against the estate.
As to services rendered after the death of the decedent in the management and operation of the farm and property constituting real estate, the agency ceased at the death of the mother, and the contract of agency thereby terminated. There is nothing, so far as we can see, justifying the administrator, as such, in operating the farms or handling the real estate, as there appears to be ample personal property and money to pay all claims of whatever nature against the estate.
It may be that as to this, an accounting could be had between the heirs at law, but we do not care to express any opinion upon this proposition.
It is clear that the administrator cannot be allowed compensation as agent, or at the rate of the agency contract, subsequent to the death of the mother.
The judgment of the court below will be reversed, and the cause remanded, with directions to disallow all claims of the administrator accruing prior to the death of the decedent, and also disallowing any claim after the death of the decedent, as agent of decedent under any theory of contract.
Reversed and remanded.