Summary
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.
Summary of this case from McDowell v. MinorOpinion
No. 28297.
October 20, 1930.
1. EXECUTORS AND ADMINISTRATORS. Administrator is required to speedily publish notice to creditors requiring probate of claims within six months ( Hemingway's Code 1927, sections 1847, 1849, 1853).
Hemingway's Code 1927, section 1849, makes it administrator's duty to speedily pay debts due by estate, provided he shall not pay any claim until probated, and section 1853 requires administrator to probate individual claim in same manner other claims are probated. Section 1847 makes it administrator's duty to publish notice to creditors requiring all persons having claims to probate them within six months.
2. APPEAL AND ERROR.
Supreme court must assume administrator published notice to creditors speedily in accordance with duty, where record did not show when notice was published (Hemingway's Code 1927, section 1847).
3. EXECUTORS AND ADMINISTRATORS.
Where administrator did not file his individual claim within six months after notice to creditors should have been given, probate of claim was nullity (Hemingway's Code 1927, sections 1847, 1849, 1853).
4. EXECUTORS AND ADMINISTRATORS.
Administrator could not delay in his duty to make prompt publication of notice to creditors and thereafter take advantage of delay in his own behalf (Hemingway's Code 1927, section 1847).
APPEAL from chancery court of Adams county. HON. R.W. CUTRER, Chancellor.
L.T. Kennedy and W.C. Martin, both of Natchez, for appellant.
A party paying a debt due by a decedent in his lifetime cannot without showing by independent proof that such payment was made at the request of the decedent, probate the account so paid as an account in his own favor and by his own affidavit.
McWhorter v. Donald, 39 Miss. 779; Union Planters Bank v. Ryles, 94 So. 796.
The statement of the claim is not itemized.
If appellee had paid said taxes by agreement with his mother, or at her request, the tax receipt was and is the only evidence and is the written evidence of such fact.
Sec. 4322, Code of 1906, Sec. 8241 of Hemingway's Code 1927.
Engle Laub, of Natchez, for appellee.
The issues and questions involved in this particular appeal are nothing more or less than moot questions.
It is admitted that the claim was not probated for the purpose of having the same allowed and paid out of the estate, but was probated solely out of an abundance of precaution against technical objections that might be made in undertaking to assert the matters involved in such claim in statement of mutual indebtedness.
Sec. 544, Hemingway's Code of 1927, sec. 530, Hemingway's Code of 1917, sec. 747, Code of 1906.
Argued orally by L.T. Kennedy and W.C. Martin, for appellant, and by S.B. Laub, and L.A. Whittington, for appellee.
Appellee, D.G. Minor, was appointed administrator of the estate of his mother, Mrs. K.S. Minor, deceased, on February 18, 1926. On the 20th day of January, 1927, or approximately eleven months after his appointment, appellee probated his individual claim against said estate in the sum of ten thousand three hundred fifty-two dollars and nineteen cents, which claim, being contested, was allowed by the court to the extent of three thousand five hundred sixty-three dollars and seventy-six cents, and the contestants appeal.
By section 1849, Hemingway's Code 1927, it is made the duty of an administrator to speedily pay the debts due by the estate, provided he shall not pay any claim until probated; and by section 1853 of said Code an administrator is required to probate any individual claim held by him in the manner as other claims are probated. By section 1847 of said Code it is made the duty of the administrator to publish a notice to creditors requiring all persons having claims against the estate to probate same within six months, in default of which they will be barred.
Since the administrator is required to speedily pay the debts, and yet can pay none until probated, it follows that it is his duty to speedily publish the notice to creditors last above mentioned. The record does not show when in fact the notice was published in this case, but assuming, as we must, that it was done in accordance with the duty of the administrator to do it, speedily or within a prompt time, then we must assume that the publication was completed not later than, say, the 1st of April, 1926. The six-month period following this would expire October 1, 1926, and since on the face of the record it plainly appears that this claim was not probated until January 20, 1927, it is equally plain that it was too late and that the probate is a nullity.
And the same result must follow, although it may be that the notice to creditors was not published promptly and was delayed by the administrator, so that the date of the actual publication was such that the probate in question was within the period of six months thereafter. For, laying aside the consideration that no notice was necessary to be given by the administrator to himself to probate his own claim, he could not delay in his duty to make prompt publication and thereafter take advantage of that delay in his own behalf. It is a maxim as old as the law itself that no person shall avail of his own wrong or default.
Reversed and remanded.