Opinion
No. 33209.
May 16, 1938.
1. EXECUTORS AND ADMINISTRATORS.
A claim against an estate cannot be amended, aside from affidavit thereto, and except as to errors which are strictly clerical, after expiration of six-month period allowed for probate (Code 1930, section 1672).
2. EXECUTORS AND ADMINISTRATORS.
That claimant did not wish to introduce new facts, but only a different theory of calculation upon original facts, did not entitle claimant to amend his claim against estate subsequent to expiration of six-month period allowed for probate (Code 1930, section 1672).
APPEAL from the chancery court of Adams county; HON. R.W. CUTRER, Chancellor.
W.A. Geisenberger and Brandon Brandon, all of Natchez, for appellant.
It is the contention of the appellant that there is nothing in the statute preventing the allowance of an amendment to a probated claim, providing such amendment does not state an entirely new and different claim or cause of action, and that such amendment should have therefore been permitted by the Chancellor.
The statute governing amendments generally in all chancery proceedings is that of sec. 391, Mississippi Code of 1930, which provides: "Amendments shall be allowed in the pleadings and proceedings, on liberal terms, to prevent delay and injustice."
It has always been the policy of courts of this state to permit amendments as may be proper to conform to the proof and true facts, and that justice may be done, with the single exception that amendments are not allowable after the bar of the statute of limitations has become effective when such amendment states an entirely new and different cause of action.
Bell v. Union Planters Bank Trust Co., 158 Miss. 486, 130 So. 486.
It is generally held that the usual rules of law in regard to amendments of statements, pleadings, and proceedings apply with respect to amendment of probated claims against the estates of deceased persons.
11 R.C.L., sec. 220, Executors and Administrators.
And this is particularly true where the proposed amendment does not effect the substantial rights of the parties and does not change the claim so as to make it a new or different one.
74 A.L.R. 400.
A probated claim against the estate of a deceased person is a "proceeding" within the meaning of that word as employed in sec. 391, Mississippi Code 1930.
Davis v. Superior Court, 170 P. 437.
It is generally held that an amendment, after time for filing has expired, of a claim filed against a decedent's estate within time will be permitted where it effects no substantial change in the claim or introduces no new or different claim as the basis of recovery.
76 A.L.R. 1380; Chariton National Bank v. Whicher, 163 Iowa 571, 145 N.W. 299; Corson v. Waller, 104 Mo. App. 621, 78 S.W. 656; 24 C.J., sec. 991, page 354, Executors and Administrators; Maughan v. Burns, 64 Vt. 316, 23 A. 583; Bogue v. Corwine, 80 Mo. A. 616; Dubbs v. Haworth, 102 Kans. 603, 171 P. 624.
The appellant is not seeking to show any different kind of liability or liability arising from any other source, but by its amendment seeks to correct the error which it made in calculating the interest of Miss Julia Nutt and the amount that she would be entitled to, based thereon.
While we admit that a fatally defective probated account cannot be amended after the expiration of the time limited by the non claim statute, (and in this connection we assert that every statutory requirement of the affidavit has always been an essential, the lack or failure of which causes the claim to be a nullity) nevertheless a probated account which is not defective but which meets all of the statutory requirements yet embraces an error in calculation, may be amended at any time unless there are involved some circumstances giving rise to estoppel; and the general rule relative to the statute of limitations as applied to amendments, prevails; and under such rules, and the authorities in this state to sustain them, the amendment to appellant's probated claim is authorized.
Cooper v. Allen, 57 Miss. 694; Easter v. Riley, 79 Miss. 625, 31 So. 210; Illinois Central R.R. Co. v. Wales, 177 Miss. 875, 171 So. 536.
Appellant was not guilty of laches which should prevent the allowance of its motion to amend its probated account.
The amendment injects no new cause of action into the claim, nor have the defenses or evidence been different or new parties required.
The appellant has not permitted four years and six months to elapse after publication of notice before filing suit.
The original probated claim was not defective in form but was probated in accordance with the statutes of the State of Mississippi.
Engle Laub, of Natchez, and Watkins Eager, of Jackson, for appellee.
Section 1672, Mississippi 1930 Code, is controlling and no amendment of a probated claim is permissible save as to the affidavit.
Lehman v. George, 99 Miss. 798, 56 So. 167; Stevens v. Mercantile Co., 112 Miss. 524, 73 So. 570; Bell v. Union Planters' Bank, 130 So. 486, 158 Miss. 343, 131 So. 257, 161 Miss. 275; Merchants, etc., Bank v. Fox, 165 Miss. 833, 147 So. 789; Wilson v. Yandell, 174 Miss. 713, 165 So. 430; King v. Jones, 171 Miss. 886, 158 So. 457; Rice Stix Dry Goods Co. v. Monsour, 174 So. 63; 59 C.J. 984.
No case has been found and appellant cites none, which permits an amendment of a probated claim after the statutory period for the probation of the claim has expired, so as to increase the amount of the claim. On the other hand, this right was specifically denied in Burns v. Burns, (Ala.) 152 So. 49, where the court went into great detail to explain the reasons for the statutory requirements of probation of claims in a certain time.
24 C.J., par. 992.
Even if Section 1672, Miss. 1930 Code, did not require a probated claim to be filed within six months after the publication, still appellant's motion to amend the claim came too late in that appellant was guilty of laches.
Griffith, Miss. Chancery Practice, par. 392, 393.
The amendment injects a new cause of action into the claim, and to said claim as amended, the defenses would be different, the evidence would be different and new parties would be required.
Travelers' Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339, 147 So. 663; Clark v. G.M. N.R. Co., 97 So. 185, 132 Miss. 627; Illinois Central v. Wales, 171 So. 536, 177 Miss. 879.
Even if the amendment did not inject into the matter a new cause of action, still the Chancellor would never be guilty of abusing his discretion in disallowing the same when the amendment was a vain act; no suit could be brought on the amended claim since the record shows that no suit has been brought on the original claim within four years and six months after publication.
Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958; Sec. 2107, Code of 1906.
There would be no abuse of discretion in disallowing the amendment where the amendment was in vain, for the reason that the original probated claim was defective in form and not probated in accordance with the statute of the State of Mississippi and the amendment did not even seek to cure this defect.
Section 1671, Code of 1930; Bankston v. First National Bank, 171 So. 19; Merchants Manufacturers Bank v. Fox, 147 So. 789, 165 Miss. 833; King v. Jones, 158 So. 796, 171 Miss. 886; Jordan v. Love, 157 So. 877, 171 Miss. 523.
After the six months allowed by statute, section 1672, Code 1930, appellant sought to amend its claim against the estate as theretofore probated within time, so as to largely increase the amount of the claim. The administratrix resisted the amendment, contending that it brings in new facts, which admittedly cannot be done; while the claimant contends that no new facts are introduced, but only a different theory of calculation on the original facts.
The entire course of our judicial and legislative history on this subject of the probate of claims indicates plainly that, after the expiration of the six-month period allowed for probate, no amendment is to be made in the claim itself, and aside from the affidavit thereto, except as to errors which are strictly clerical. No new or additional material facts are to be brought in, nor is there to be introduced any new theory of calculation upon the original facts whereby after said six months the amount of the claim will be increased. Within said six months, the administrator and others in interest in an estate are entitled to be informed by probate not only what are the facts upon which a claim is presented, but also what the claimant proposes to make of those facts.
If the rule were otherwise, there would be many estates wherein it could never be told when they are ready to be wound up and final distribution made.
Affirmed.