Opinion
No. 36713.
April 12, 1948.
1. TIME.
Where first notice to creditors of decedent's estate was published June 26, 1946, claim against estate presented for probate December 27, 1946, was not presented within the six months required by statute and hence was barred (Code 1942, sec. 569).
2. EXECUTORS AND ADMINISTRATORS.
Evidence established claim against decedent's estate based on account for merchandise sold and delivered to decedent.
3. EXECUTORS AND ADMINISTRATORS.
Interest began to run on balance due on account for merchandise sold and delivered only from date of probate of claim against deceased buyer's estate based on such account, where monthly statements stated that bills were due when presented and it was not shown that any statement claiming such amount to be owing was presented buyer or his personal representative until claim was probated.
4. EVIDENCE.
Admission of evidence based upon charges in seller's ledger to prove amount owing by deceased buyer's estate was not error, though, due to error in placing carbon copies of invoices in priority file without posting them to the ledger, charges were not made on ledger until some time after sale and delivery of merchandise, where such delay was explained and account was established by other original records.
APPEAL from the Chancery Court of Hinds County.
Harold Cox, of Jackson, for appellants and cross-appellees.
The court erred in disallowing appellants' claim in the amount of $654.59, which was duly probated in said estate cause on December 27, 1946.
Langley v. State, 170 Miss. 520, 155 So. 682; Rayl v. Thurman, 156 Miss. 1, 123 So. 853; Dougall v. Carriere, 175 Miss. 845, 168 So. 285; Code of 1930, Secs. 1377, 1397, 1398, 1672.
The court erred in not allowing in its entirety the appellants' claim probated on October 7, 1946, in the principal amount of $5155.39 according to the undisputed proof in this case.
Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; Holmes v. Holmes, 154 Miss. 713, 123 So. 865; Crichton v. Halliburton Moore, 154 Miss. 265, 122 So. 200; Manning v. Life Ins. Co., 100 U.S. 693; Goodman v. Simonds, 61 U.S. 343; Chesapeake v. Martin, 283 U.S. 209; Penn. R. Co. v. Chamberlain, 288 U.S. 333; Consolidated Edison Co. v. NLRB, 305 U.S. 197.
The trial court erred in holding that one of the partners in this case could not testify in support of the claim of the other party against this estate, and thus erred in holding that the witness, Paine, was incompetent as a witness for any purpose in this case simply because he was a member of this partnership which was claimant here.
Harper v. Lacey, 62 Miss. 5; Cole v. Gardner, 67 Miss. 670, 7 So. 500; Barry v. Sturdivant, 53 Miss. 490; Ellis v. Berry, 145 Miss. 652, 110 So. 211; Saffold v. Horne, 72 Miss. 470, 18 So. 433; Spivey v. Walton, 107 Miss. 56, 64 So. 937; Shepherd v. Johnston, 201 Miss. 99, 28 So.2d 661; Code of 1942, Secs. 1688, 1690.
The issues on the trial of this case were limited by the stipulation of counsel and the timeliness of the probate of this claim was not preserved thereby.
Byrd v. Wells, 40 Miss. 711; Scarborough v. Harrison Naval Stores, 95 Miss. 497, 51 So. 274; Doolittle v. Adams (Miss.), 43 So. 951; Worsham et al. v. McLeod (Miss.) 11 So. 107; Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Pate Lumber Co. v. Weathers, 167 Miss. 228, 146 So. 433.
The appellants properly anticipated their account as having been regularly and accurately kept and such account in the amount of $5809.98 was conclusively proved to be due by the appellee's estate.
Missouri Pacific Transport Co. v. Beard, 179 Miss. 764, 176 So. 156; New Orleans, J. G.N.R. Co. v. Echols, 54 Miss. 264; Panola County Bank v. J.O. Nessen Lumber Co., 117 Miss. 593, 78 So. 516; Grenada Cotton Compress Co. v. Atkinson, 94 Miss. 93, 47 So. 644; Hayes et al. v. National Surety Co., 169 Miss. 676, 153 So. 515; Greene v. Greene, 145 Miss. 87, 110 So. 218.
The appellee never denied that the contested invoices were once proper charges against McMurtray but erroneously contends that the burden of proof of nonpayment thereon was on the appellants as claimant and not on appellee as debtor.
Greenburg v. Sauls Bros. Co., 91 Miss. 410, 45 So. 569; Germany v. U.S.F. G. Co., 168 Miss. 854, 152 So. 275; Anderson v. Cumberland Tel. Tel. Co., 86 Miss. 341, 38 So. 786; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Southern Bell Tel. Tel. Co. v. Quick, 167 Miss. 438, 149 So. 107; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295; Joe Duck Kwong v. Board of Mississippi Levee Com'rs., 164 Miss. 250, 144 So. 693; Stowell v. Clark, 152 Miss. 32, 118 So. 370; U.S.F. G. Co. v. Parsons, 154 Miss. 587, 122 So. 544; Foster Co. v. Fulton Bag Cotton Mills, 159 Miss. 217, 131 So. 415; United Press Ass'n v. McComb Broadcasting Co., 201 Miss. 68, 28 So.2d 575; Carter v. Catchings (Miss.), 48 So. 515; Pollak v. Winter (Ala.), 55 So. 828; Lampkin v. Thomas (Ala.), 79 So. 156; 16 Encyclopedia of Pleading Practice 179.
Creekmore Creekmore, of Jackson, for appellee and cross-appellant.
Where a claim against an estate is contested the burden is upon the claimant to establish the claim by a preponderance of the evidence, and this burden must be met by clear and convincing evidence.
North v. Lowe, 63 Miss. 31; King v. Stauddy's Estate, 149 Miss. 222, 115 So. 427; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; Martin v. DeJarnett, 185 Miss. 76, 187 So. 202; Nicholson v. Dent, Robinson Ward, 189 Miss. 658, 198 So. 552; Wooley v. Wooley, 194 Miss. 751, 10 So.2d 539; Wells v. Brooks, 24 So.2d 533; Jennings v. Lowery Berry, 147 Miss. 673, 112 So. 692; Whitaker v. Davenport, 193 Miss. 523, 10 So.2d 202; Rice Stix Dry Goods Co. v. Monsour, 178 Miss. 621, 174 So. 63; Strange v. Strange, 189 Miss. 349, 197 So. 830; Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Stevens v. D.R. Dunlap Mercantile Co., 112 Miss. 524, 73 So. 570; Code of 1942, Sec. 568.
The record in this case shows without dispute that the items which are here in controversy were entered on Paine's books about a year after the transactions were supposed to have occurred, and after McMurtray's death. Therefore, being conclusively shown that, as to these items, the books were not kept in regular course of business, they were not competent, either to prove a sale and delivery of the items to McMurtray or to prove that they had not been paid for.
Chicago, St. L. N.O.R. Co. v. Provine, 61 Miss. 288; Wooten v. Mobile O.R. Co., 89 Miss. 322, 42 So. 131; Barner v. Rule, 116 Miss. 600, 77 So. 521; Robertson v. Greenwood Lumber Co., 127 Miss. 793, 90 So. 487; W.T. Raleigh Co. v. Rotenberry, 174 Miss. 319,
164 So. 5; Howell v. Ott, 182 Miss. 286, 181 So. 740; Jones on Evidence (3 Ed.), Secs. 571, 572.
Mr. K.A. Paine was offered as a witness to testify in support of the claim here in controversy. Paine was not a competent witness.
Faler v. Jordan, 44 Miss. 283; McCutchen v. Rice, 56 Miss. 455; Nicholson v. Dent, Robinson Ward, supra; Code of 1942, Sec. 1690.
The supplemental claim of $654.59 was barred. The term "month" when used in any statute means a calendar month, unless a contrary intention be expressed. In computing time the computation must be reckoned by looking at the calendar and not by counting the days, and when not coincident with the particular month named in the calendar such a month is the period of time from the day from which the month is to be computed to the day numerically corresponding thereto in the following month less one, if the following month has so many days, if not, to the last day thereof. The six months' period after the date of the first publication, within which period the claim was required by statute to be registered, probated and allowed, expired at midnight December 26, 1946, and, therefore, the claim was barred.
Williams Bros. v. Bank of Blue Mountain, 132 Miss. 178, 95 So. 843; Langley v. State, 170 Miss. 520, 155 So. 682; Hattiesburg Grocery Co. v. Tompkins, 111 Miss. 592, 71 So. 866; Rayl v. Thurman, 156 Miss. 1, 123 So. 853.
See also Nagle v. Ball, 71 Miss. 330, 13 So. 929.
Section 36 of the Code of 1942 provides that the legal rate of interest on open accounts shall be 6 percent per annum, and by virtue of this statute open accounts bear interest from the time they are due, unless otherwise agreed, but in no event do they bear interest until they become due.
See Thompson v. Mathews, 56 Miss. 368; Stowell v. Clark, 152 Miss. 32, 118 So. 370; Carson v. Alexander, 34 Miss. 528; Miller v. Henry, 139 Miss. 651, 103 So. 203; 33 C.J. 198.
W.O. McMurtray departed this life intestate June 16, 1946. Appellant, a partnership, probated two claims against his estate — one on October 7, 1946, for $5,155.39, the other on December 27, 1946, for $654.59. The administratrix, appellee here, contested the smaller claim on the ground it was not probated within the time required by law and the other on the general ground the estate did not owe it, except as to the amount of $2,512.42, which was admitted to be owing. The chancellor held that the smaller claim was presented for probate too late and that the larger claim was established to the amount of $3,833.90, and entered a decree against the estate for that sum, plus annual interest at six percentum thereon from June 1, 1945. Paine prosecutes a direct appeal from that part of the decree disallowing the smaller claim and disallowing $1,321.49 of the larger claim and the administratrix cross-appeals from the allowance of any amount in excess of that admitted by her to be owing. The case, therefore, involves two questions: (1) Whether the claim filed October 7th was presented for probate within the time required by statute, and (2) what amount, if any, is established by the proof to be owing by the estate in excess of the admitted obligation of $2,512.42.
As to the first question, section 569, Mississippi Code 1942 requires all claims against the estates of deceased persons to be registered and probated within six months after the first publication of notice to creditors to present claims; otherwise, they will be barred. The first notice to creditors of this estate was published June 26, 1946. As stated, the claim in question was first presented for probate December 27, 1946. The chancellor held the claim was not presented within the six months required by said section. This holding was in accord with the method announced in Langley v. State, 170 Miss. 520, 155 So. 682, and Williams Brothers v. Bank of Blue Mountain, 132 Miss. 178, 95 So. 843, for computing time based upon monthly periods under said statute. His decision upon that question was correct.
The second question is whether the evidence establishes the purchase by and delivery to McMurtray of the disputed items included within the larger claim and, if so, their non-payment.
Paine was engaged in the sale of plumbing, heating, and well-drilling appliances and supplies, with office at Jackson, Mississippi. McMurtray was in the business of drilling water wells, his work, during the time here involved, being confined to drilling wells for public schools and other public institutions. He began purchasing supplies from Paine in 1944 and continued to his death June 16, 1946. On the question of sale and delivery to McMurtray, G.F. Reeves, salesman and bookkeeper for Paine, George Kitchens, who worked in Paine's warehouse, and Ray Dunlap, who was an employee of McMurtray, testified that of their personal knowledge and from original records made by themselves, McMurtray purchased and was delivered the aggregate of $3,109.30 of the articles in dispute. That lacks only $45.58 of establishing the sale and delivery to McMurtray of all the items in question. In addition to that, Dunlap testified that, under the war conditions then existing, it was necessary, in order that McMurtray be able to purchase supplies and Paine be able to replenish his stock, that priority orders be signed for all purchases by McMurtray; that he, Dunlap, was duly directed and authorized by McMurtray to sign such priority orders. Dunlap did sign such priority orders covering all items in dispute. He said he was conscious of the duty to his Government and of the gravity of his acts in signing these orders, and that he thoroughly investigated and verified the fact of purchase and delivery of each article before signing such orders. In addition to this, it is disclosed by the testimony of the administratrix herself, who assisted McMurtray about his office work, that the original invoices covering all items in question were in the possession of McMurtray at the time of his death. It is shown, without dispute, that the custom was to deliver either by person or mail to McMurtray these original invoices when the goods were purchased and delivered.
The evidence of non-purchase and non-delivery of the disputed items is this: As stated, original invoices were made of the purchases. Carbon copies were made of these originals. The charges were made on the ledger from the carbon copies. Paine was short of help. Sometimes there was a delay in posting to the ledger the billed goods shown on the carbon copies. Mrs. McClurkin, secretary and office-assistant to Paine during the time in question, testified that she erroneously placed these carbon copies in the priority file without posting them to the ledger. These were the carbon copies Dunlap had verified, the originals of which had been delivered to McMurtray, and on which copies Dunlap had signed the priority orders. These constitute the items in question. Mrs. McClurkin further testified that shortly after the death of Mr. McMurtray a Miss Mitchie, office-assistant and bookkeeper for McMurtray, came to Paine's office to investigate a charge for a pump, and Miss Mitchie brought with her the said original invoices, and that she, Mrs. McClurkin, then discovered they had not been charged to McMurtray. She then explained that situation to Miss Mitchie, who raised no question whatever as to whether McMurtray had received the articles charged to him on the original invoices. This occasioned the investigation and consequent discovery of the error in placing in the priority file the carbon copies of such invoices before the charges were made therefrom onto the ledger. The charges were then made and the original invoices were returned to McMurtray. Naturally, because of the foregoing error, the monthly statements mailed to McMurtray before his death did not show him charged with these articles. The testimony of Mrs. McClurkin is uncontradicted. Miss Mitchie did not testify.
And now as to the credits: The probated claim charges McMurtray with a total of $14,105.50 during the entire time he bought from Paine and credits him with seven payments, aggregating $8,659.98, with an additional credit of $290.13, adjustment on the pump. The administratrix mentions no additional specific credit to which she is entitled. She simply says in general terms the estate owes no more than she admitted owing. She introduced no proof of any amount which should have been, but was not, credited on the account. She did say Mr. McMurtray, in the course of conducting his business, sometimes paid cash for his supplies. It is shown that he bought in rather large quantities from persons other than Paine, but Mrs. McMurtray very frankly stated she knew of no cash purchases by McMurtray from Paine or any payment made by McMurtray not shown on the probated account. However, she further said that McMurtray had a vertical file on which was marked "bills paid" and one on which appeared "unpaid bills", and that after his death she found the said original invoices in the bills-paid file. From this, she deduced the items had been paid. But she further stated that the invoices themselves were not marked paid. The force of this deduction was somewhat weakened by the fact that she was requested a number of times while on the stand to bring these original invoices into court, but they were never produced. On the other hand, Mrs. McClurkin testified the probated claim showed the accurate credits and that the estate was entitled to no credit other than as shown thereon. Mize, who audited the books of McMurtray, made no claim for additional credits. W.H. Howie, an auditor, and who assisted in installing a set of books for McMurtray shortly before his death, testified that McMurtray had no ledger, that he had only a journal, that he, Howie, in the course of his audit, had made a careful investigation and check of all bank deposits, receipts, vouchers, paid checks, records, etc., in the office of McMurtray, and that he found no evidence of any kind that McMurtray had made any payments to Paine other than those shown on the probated claim. This witness was asked, "You are unable to tell this court that Mr. McMurtray ever paid Mr. Paine anything on this account except payments credited on the probated claim; is that right? A. That is correct."
Summed up, this record discloses no substantial evidence that any item charged on this account was not bought by and delivered to Mr. McMurtray, nor is there any such evidence showing that the estate is entitled to any credit other than the credits shown on the probated account.
This does not reverse the chancellor on his findings of fact. Rather it supports that finding. He held that the proof established that the estate owed Paine one-half of the excess of the probated claim above the amount admitted to be owing. There is no proof applying especially to establish the excess he found to be owing which does not apply to establish the balance of such excess. In other words, the proof as to charges and credits applies alike to the amount allowed and the amount disallowed by the chancellor.
The decree charged the estate with interest from June 1, 1945. The administratrix contends that interest on $2,642.97, the amount in dispute after eliminating the smaller claim, should not begin to run until the date of the probate of the larger claim. We think that is correct on the record before us. The monthly statements contain this printed statement: "Bills due When Presented." It is not shown that any statement claiming said amount to be owing to Paine was presented McMurtray or his administratrix until the claim was probated October 7, 1946; therefore, interest should begin to run on that date on that amount.
Appellee says that it was error to admit any evidence based upon the charges in the ledger pertaining to the amount in controversy. She says the proof shows these charges were not made when the goods were purchased, and, therefore, the books were not kept in the usual and regular manner. The delay in making the entries and the bases for that action were fully explained and the chancellor was in position to give due weight to such entries. In addition, the account was established by other original records made by the witnesses themselves and from their personal knowledge. There was no error in this respect.
Judgment will be entered here against the Administratrix and in favor of appellant for the principal sum of $2,512.42, with interest thereon at 6% per annum from June 1, 1945, and for the principal sum of $2,642 97, with interest thereon at 6% per annum from October 7, 1946, until paid.
Affirmed in part, reversed in part and judgment here.