Talbert v. Ellzey

Boggan v. Scruggs, 200 Miss. 747, 29 So.2d 86, was correctly decided and should not be overruled provided claims of the character here under consideration should be probated in accordance with the requirements of Section 568, Code 1942. That case simply followed Whitehead v. Puffer, 187 Miss. 193,192 So. 566, where the many supporting authorities were cited.

This claim is not one for unliquidated damages nor based on a contingent liability, but one which arose ex contractu during the life of the appellant's intestate, though it did not become due, that is payment therefor could not have been coerced, prior to the death of the deceased, nevertheless it is a claim within Section 568, Code 1942, as this Court expressly held in Old Men's Home, Inc., v. Lee's Estate, 191 Miss. 670, 4 So.2d 235. This case, which was decided by the Court in banc, does not expressly overrule Stephens v. Duckworth, 188 Miss. 626, 196 So. 219, decided by a Division of this Court, which is in conflict therewith, but it does by necessary implication, and being a later pronouncement of this Court on the subject should be either followed or overruled.

Among the purposes of the statute requiring claims against the estate of decedent to be probated, "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." Lehman v. Powe, 95 Miss. 446, 49 So. 622, 623, quoted with approval in First Columbus National Bank v. Holesapple-Dillman, 174 Miss. 234, 164 So. 232.

In McCully v. McCully, 175 Miss. 876, 168 So. 608, the Court's attention was not addressed to and did not discuss what should appear on the probated account, but its attention was addressed to and it discussed, in this connection, only when the statute of limitations begins to run on a claim of this character, which it correctly held was at the death of the person whose estate was sought to be held liable therefor. Boggan v. Scruggs, supra, therefore, cannot be held to be in conflict therewith.

The claim here under consideration was probated in this form:

"Statement of account

Three years and ten months board, lodging, clothing, medical attention and nursing at $30.00 per month ................................... $1380.00

Tax payments for account on lands in Pike County Miss.:

1939 taxes, Release No. 4404 ........ $15.43 1940-41 taxes, Release No. 4405 ..... 58.95 1942 taxes, Release No. 5052 ........ 33.59 1943 taxes, Release No. 5053 ........ 28.01 1944 taxes, Receipt No. 7810 ........ 18.70 ______ Total taxes paid .............................. 154.68"

Followed by the statement of credits to be applied thereto. It does not disclose when the rendition of the services began or when it ended, or why the statute of limitations should not apply thereto. The overruling of Boggan v. Scruggs, supra, would not necessarily result in disclosing error in the decree appealed from. In that case the probated claim showed on its face that a portion of it was barred by the statute of limitations. The probated claim here wholly fails to contain any information on that point, for, as just stated, it discloses neither the beginning nor the ending of the services rendered the decedent. The necessity for a probated claim to disclose whether it is barred by limitation will appear when we remember that an administrator is without authority to waive this bar, or to pay a claim so barred. 34 C.J.S., Executors and Administrators, Sec. 382; 7 Miss. Digest, Executors and Administrators, Key No. 213, and authorities there cited. See also authorities thereon hereinbefore cited and in the controlling opinion.

The probate of a claim of this character need not and should not be limited to a mere statement of the items thereof, but should be "a statement of the claim in writing" of such character as would enable "the administrator and all other parties concerned" to "act intelligently in determining whether the same [is] just and should be paid." Lehman v. Powe, supra; Henderson v. Ilsey, 11 Smedes M. 9, 19 Miss. 49 Am. Dec. 41; Sanders v. Robertson, 1 Cushm. 389, 23 Miss. 389; Bingaman v. Robertson, 3 Cushm. 501,25 Miss. 501; Trotter v. Trotter, 40 Miss. 704; Byrd v. Wells,40 Miss. 711; and Huntington v. Bobbitt's Heirs, 46 Miss. 528.

The decree of the Court below should be affirmed.