Opinion
No. 31921.
November 18, 1935.
EXECUTORS AND ADMINISTRATORS.
Claim against testator's estate, which purported to be itemized account or statement of claim in writing, which charged estate with purchase of note on which there was balance due, would be disallowed where evidence clearly disclosed that there was no sale of note by claimant to testator, but that testator agreed to collect note for claimant, pay certain amount on debt of testator's son to testator and turn over balance to claimant, and that testator merely became claimant's agent or trustee for collection of note (Code 1930, sections 1671, 1678).
APPEAL from the chancery court of Lowndes county; HON. T.P. GUYTON, Chancellor.
John F. Frierson, of Columbus, for appellant.
The probated account shows "by money due for sale of a note to W.N. Holesapple, Sr.," but the note was neither probated nor exhibited. No date or itemization or description of the note was probated.
Section 527, Code of 1930.
The evidence was introduced on sale of promissory note, and the introduction of this note with endorsements and deed of trust was duly objected to at the trial of the case.
Section 1671, Code of 1930.
The account was a claim for a note of one thousand seven hundred twenty dollars with a credit of six hundred thirty-five dollars, and the said note was not probated.
Section 2106, Code of 1906; Persons v. Griffin, 73 So. 624, 112 Miss. 643.
We respectfully submit that in the case at bar where there is no itemization whatever of the claim, the date given on the claim is improper, and does not correspond with the proof, written evidence of the indebtedness existed and was in the hands of the claimants and presented at the hearing.
Wells v. McCullough, 74 So. 289, 113 Miss. 401; Merchants Manufacturers Bank v. Fox, 147 So. 789, 165 Miss. 833.
The claim was barred by the statute of limitation.
Sanders Davis, Admrs., v. Robertson, 23 Miss. 389; Gray, Admr., v. Thomas, 12 S. M. 111; Bozeman v. Brown, 6 How. 349; 1 How. 115; Henderson v. Ilsley, 11 S. M. 9, 49 A.D. 49; Succession of Driscoll, 50 So. 200; Trotter, Admr., v. Trotter et al., 40 Miss. 704; Bird v. Wells, 40 Miss. 711; Roberts v. Rogers, 28 Miss. 152, 61 A.D. 542; Bingham et al. v. Robertson, 25 Miss. 501; Waul, Exr., v. Kirkman, 25 Miss. 609; Pinson v. Williams, 23 Miss. 64; Woods v. Elliott, 49 Miss. 168; Nochemson v. Aronson, 181 N.E. 188; Hall's Estate, 259 N.Y. 455; Gwinn v. Farrier, 165 S.E. 647; Moore v. Hillebrant, 65 A.D. 118; Roberts v. Roberts, 28 Miss. 152.
We respectfully submit that under the circumstances proof of the payment of a decree in favor of Mrs. Ruby Y. Dillman Holesapple individually on such a suit as the case at bar on such proof as introduced in this case would not protect the executor of the estate of W.N. Holesapple from liability to a properly appointed and qualified executor of that estate, setting up a proper claim on proper proof.
The claim against the estate of a decedent, although duly probated and registered, must be established by competent evidence if objected to by the administrator.
North, Admr., v. Lowe, 63 Miss. 31; Section 1586, Code of 1930; M. O.R.R. Co. v. Swain, 145 So. 627, 629, 164 Miss. 825.
Loving Loving, of Columbus, for appellee.
This account is itemized as fully as it can be. The account states that it was for money collected on a note, the note having been transferred by the appellee to the deceased. This disposes of the question of the statute of limitation, however, the question of the statute of limitation was not raised in the court below, nor is it covered by the assignment of errors, and hence cannot be considered on this appeal, even if it were applicable.
Griffith's Chancery Practice, sec. 149; Parkinson v. Mills, 159 So. 651.
Considerable comment is made in reference to this note transferred by the appellee to the deceased, and it is urged this note should be probated, or should have been probated. There is nothing in this note or endorsement showing any liability whatsoever from the deceased to the appellee and it is inconceivable to us, how she could have probated such a note, as she had no claim under any terms or provisions of the note, to probate. There is nothing in the note under any of its terms or by any of the endorsements whereby the deceased promised or obligated to pay anything, her claim against him resting merely in a parole agreement, then on the other hand the note having been transferred to the deceased, and the deceased having collected from Hackworth, the presumption was that the note was not in her possession, but was in the possession of Hackworth, after he had paid it, and of course, as a matter of evidence it was secured from him as evidence of the transfer by her to the deceased, of this note, in support of the oral agreement.
This note was in the possession and under the control of the appellee, and regardless of the regularity or irregularity, the legality or illegality, authority or want of authority, of the transfer of the said note by the appellee to the deceased Holesapple, for the simple reason that the evidence clearly shows that the transfer was made; that he accepted the transfer; that he took the note under the oral agreement; that he handled it under the oral agreement; that he collected the money under the oral agreement, and having thus handled the note and secured the proceeds of it, that he, himself, could not set up any such defense, and that the appellant, his legal representative, standing in his shoes and being in the position that he was, is liable to the appellee for the money had and received on the note under the oral agreement, and consequently estopped from challenging the right of the appellee to make the transfer, if she was in the wrong, or he was in the wrong, he cannot now set up any such defense, which was not raised in the court below nor in the assignment of errors and thus let his estate profit by his own wrong.
Broom's Legal Maxims, page 228; Cutter v. Powell, 6 Term Rep. 320; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Swan v. North British Australasian Co., Ltd., 7 Hurl. N. 603; City Nat. Bank of Dayton v. Kusworm, 88 Wis. 188, 59 N.W. 564, 26 L.R.A. 48-68, 43 Am. St. Rep. 888; Hall et al. v. Hardaker, 55 So. 977, 61 Fla. 267, 13 C.J. 647, sec. 721.
There is nothing in this record to show whether the account was left in the hands of the clerk, under the statute, which is merely directory, or where it is, nor is there anything in the record to show what the issue is or what contest the appellant instituted in this action, but on this contest and on the issue made up, the court, under the evidence, very properly held that this is a valid subsisting claim against the estate of the deceased.
Mrs. Ruby Y. Holesapple-Dillman, appellee, presented for probate an account against the estate of Walter N. Holesapple, deceased, of which the appellant, First Columbus National Bank, was executor. The account as probated is as follows:
"The Estate of W.N. Holesapple, Sr., Deceased, Debtor to Mrs. Ruby Y. Holesapple-Dillman.
"July 15, 1929
"By money due for sale of note to W.N. Holesapple, Sr. ................................................ $1,720.00. "Credit "July 15, 1929 "To pay out for W.N. Holesapple, Jr. ............... 635.00 _________ "Balance due ...................................... $1,065.00."
This account was probated and allowed for the amount thereof, one thousand sixty-five dollars, under the authority of section 1671, Code of 1930. The executor filed a contest of the claim under section 1678, Code of 1930. Upon the hearing of the evidence, the court allowed it as a valid claim against the estate, and the executor appeals to this court.
There are many objections to the claim, but we shall only state those which we think material to a decision of the case.
R.T. Simpson, an attorney at law in Alabama, testified that the decedent and the claimant, Mrs. Dillman, came to his office, and that the decedent needed six hundred thirty-five dollars to clear up some trouble about an automobile; his son was being threatened with criminal prosecution by the "retention title folks in Arizona." Mrs. Dillman was executrix of her husband's estate then being administered in New Mexico or Arizona, she owned a note signed by Hackworth and payable to Dillman. Mrs. Dillman and Holesapple (meaning Holesapple, Jr., son of W.N. Holesapple) were sweethearts and later married. She had the Hackworth note and delivered it indorsed to the decedent while in Simpson's office. They had come to the office for the purpose of having the witness look after the matter. The deceased got the money on the note and the interest. The agreement between the decedent and the claimant, Mrs. Dillman, was that when he collected the note he was to pay himself back the six hundred thirty-five dollars and the rest of it he was to pay to her. The witness further testified that he was present when the note was collected and that he would have remitted the balance to Mrs. Dillman, but did not know where she was, and the full amount was paid to Holesapple. The decedent executed a power of attorney to Simpson authorizing him to cancel the deed of trust which was security for the note upon its payment. The deed of trust was canceled and the note marked "paid in full."
The conversation in the office of Mr. Simpson was between the decedent, the attorney, and Mrs. Dillman, and in the hearing of Mrs. McCrosky, the stenographer of the attorney. Mrs. McCrosky corroborated Simpson as to the conversation in the office and the terms of the contract between Mrs. Dillman and the decedent.
The evidence of Simpson and Mrs. McCrosky was objected to as being a privileged communication. The note was for one thousand seven hundred eighteen dollars and was payable to G.E. Dillman, signed by G.W. Hackworth, and was indorsed on the back, "G.E. Dillman, by Ruby Y. Dillman, as Extcr.," and was further indorsed, "Paid in full this 4/24/28. W.H. Holesapple, By R.T. Simpson, Atty. in Fact." The deed of trust was indorsed, "Ruby Y. Dillman, Individually and executrix of will of Geo. E. Dillman." The note and deed of trust were exhibits to the evidence of Simpson.
It is here urged by the executor that the written statement of the probated account should have included the note as the basis of the claim, and, further, that if the claim as probated is, on its face, a sufficient statement of the account, then the evidence offered is incompetent because the relation of attorney and client existed between the decedent and Simpson, the witness, and, further, that the evidence offered, if competent, is at variance with the written statement of the claim probated, and is an entirely different cause of action. The executor also pleads the statute of limitation and calls attention to the fact that the probated claim misled the executor in the court below, since it fixed the date of the account as July 15, 1929, when the transaction in the office of Simpson occurred September 1, 1927. Holesapple died April 1, 1931.
The applicable part of section 1671, Code of 1930, is as follows: "Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, or, if the claim be a judgment or decree, a duly certified copy thereof, or, if there be no written evidence thereof, an itemized account, or a statement of the claim in writing, signed by the creditor, and make affidavit, to be attached thereto, to the following effect, viz." etc.
It will be observed at once that the account as probated purported to be an itemized account or a statement of the claim in writing. By its statement it purports to charge the decedent's estate with the purchase of a note on which there was a balance due of one thousand sixty-five dollars. The evidence in this case clearly discloses that there was no sale of the note by Mrs. Dillman to Holesapple. The effect of the testimony is that Holesapple agreed to collect the note for Mrs. Dillman, pay six hundred thirty-five dollars on the son's debt to himself and turn over the balance when collected to Mrs. Dillman. Holesapple simply became Mrs. Dillman's agent or trustee for the collection of the note. He collected it on April 28, 1928, and thereupon became liable to Mrs. Dillman for the balance, as shown by the account. There was no sale or purchase. The evidence did not sustain a claim for money had and received.
With this analysis, we are of the opinion that the probated claim was for balance of the proceeds of a note which the evidence did not sustain, but thereunder the decedent became the agent or trustee of Mrs. Dillman to collect the note and pay to her the balance when so collected. We may leave out of view the question of whether or not Mrs. Dillman was invested with the power to transfer the title of the note to Holesapple; the question as to whether the evidence was competent as being a privileged communication, yet we are convinced that the claim as presented was at variance with the evidence sustaining the claim, and that it should have been disallowed.
In Lehman v. Powe, 95 Miss. 446, 49 So. 622, 623, this court held, construing this statute, as follows: "One of the objects of the statute in requiring claims to be probated, allowed, and registered is that the administrator and all other parties concerned may ascertain what debts are claimed to be due by the estate, and act intelligently in determining whether the same are just and should be paid, or whether the same should be contested. The statute also clearly contemplates that, in presenting claims against the estate of a decedent, the evidence or statement of same probated must on its face show a prima facie right in the claimant to recover from the estate the amount claimed, and that it must disclose the nature and amount of the claim with sufficient precision to bar, when paid, an action therefor. . . . The words `written evidence,' as used in the statute, clearly mean such a writing as by its terms or on its face evidences the fact that a liability exists on the part of the estate in favor of the claimant. Section 2106 [Code 1906] (the same in this particular as section 1671 [Code of 1930]) is mandatory, and, unless it has been complied with, the administrator, under section 2105 [Code 1906], has no authority to pay the claim; nor has the court power to order him so to do, unless Code 1906, sec. 2106, has been complied with."
There is such a vast difference between a suit on an itemized account, for instance, for merchandise sold or for a note sold, and the claim for an accounting as between principal and agent, that the two causes of action are wholly irreconcilable. The claim, therefore, is disallowed, and decree will be entered here accordingly.
Reversed, and decree here for appellant.