Sims v. Sims , 30 Miss. 333 ( 1855 )

Handy, J.,

delivered the opinion of the court.

This is an appeal from an order of the Probate Court of Monroe county, allowing certain exceptions filed by the appellee, the testator’s widow, to the final account and settlement of the executor.

The first question for consideration arises upon the rejection by the court below of certain claims against the estate, which the executor had paid, and which had not been probated and allowed in the due and usual form, and which were not proved to be valid claims, upon exceptions taken to them.

It is clear that the court acted properly, in refusing to allow these claims in the executor’s final settlement. The rule to be deduced from the provisions of the statute in relation to the establishment of claims against estates of deceased persons, is plainly this: — if an executor or administrator, having sufficient funds in his hands, pay a claim which is duly probated and allowed, primé fade he is entitled to an allowance for the same in his final account, but if he pay a claim not probated and allowed, primé fade he acts in his own wrong, and he will not be entitled to an allowance for it, unless he adduce competent evidence before the court, that the claim was just and valid, and that it remained unpaid at the time it was paid by him. Under this rule, the claims numbered 20, 22, and 28, in the bill of exceptions, were properly rejected.

Another question arises upon the rejection by the court of several claims against the testator due to the executor, and which he set up in his final account, as debts due to him in the testator’s lifetime, and remaining unpaid. These claims were disallowed, on the ground that they were barred by the Statute of Limitations. They were not barred by the statute, at the time the appellant took upon himself the trust of executor. But the court below appears to have held them as barred, because their allowance was not claimed by the executor, until he presented his final account, at which time, the period necessary to create a bar had elapsed.

We do not think that these claims were barred by the statute. If they had been demands of a party who could have sued upon them, the bar would have attached. But being debts due the executor, he could not sue himself as executor. He did all that he could legally do to assert his claims, by having them probated and allowed, and registered in the records of the Probate Court as claims against the estate. So far as others were interested, this was legal notice to them of his claims, and no detriment could arise to them, further than would have existed if the claims had belonged to a stranger, and he had sued the executor for them. Nor is it any reason for the application of the bar to them, that the executor did not apply moneys in his hands to their payment, before he paid the claims of other creditors, nor that he' did not render any account of these claims in his previous annual accounts. It would not have been proper to mention such claims in his annual accounts, unless he had then paid them, and it certainly cannot be complained, that he paid other creditors before he satisfied his own claims, unless it can be shown that he had in his hands funds sufficient to pay all the debts, and then the reason would be not against the entire claims, but against the allowance of interest.

It was, therefore, error to disallow the vouchers referred to in the bill of exceptions, as 54, 55 and 56. But in the last mentioned voucher, the items for $ 10 paid to Bussell, and $43 paid to Marshall, were not established by legal proof, and the charge of $80, for a horse, had already been allowed in voucher 54. These three items were therefore properly excluded; but the bar of the statute was improperly applied to the other items in voucher 56. It was also improperly applied to voucher 47, which was the claim of a creditor of the estate, paid by the executor before the bar of the statute attached to it, and for which he was entitled to an allowance.

The voucher 57, which is commented on by counsel, is not mentioned in the bill of exceptions as having been disallowed, or that any exception was taken in relation to the action of the court upon it.

The judgment is reversed, and the case remanded for further proceedings.