George T. Webb & Co. v. Fogg

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree in the court below disallowing a claim probated by the appellants against the estate of Gorman Baker, deceased, of which the appellees are the executors. The claim was probated more than two years after the publication of notice to creditors to probate claims against the estate.

The ground on which it is sought to reverse the decree of the court below is that the notice to creditors is void. Section 2103, Code of 1906 (Hemingway’s Code, section 1771, now chapter 302, Laws of 1920), provides that the notice to creditors against the estate of a decedent shall set forth “the time when the letters were granted.” Baker died on the 10th day of February, 1920, and letters testamentary on his will, wherein the appellees were appointed executors, were granted to them on the 18th day of February following, but the date thereof stated in the notice to creditors was the 8th day of February, which erroneous statement of the date is one of the reasons for which counsel for appellees claimed that the notice was void.

Article 81, section 9, chapter 60, Code of 1857, required an executor or administrator to publish a notice to creditors within two months after his appointment, which time was reduced by section 1135-, Code of 1871, to one month, and each of these sections contained the requirement that the notice should state when the letters were granted. This requirement under those statutes served the very useful purpose of advising creditors whether or not the notice was published within the required time, for, if not so published, the notice was void. Bank v. Windham, 31 Miss. 317. The limitation on the time within which the notice to creditors must be made was eliminated from the statute in the Code of 1880, section 2026, but the requirement that the notice shall state “the time when the letters were granted” was retained, and continues to appear in the statute. It’ serves no conceivable useful purpose now, and its presence in the statute is manifestly the result of an oversight on the part of the draftsman. That being true, it would be absurd to hold that a notice to creditors which fails to comply therewith, or which states the date of the issuanee of the letters inaccurately, renders the notice void.

Section 2103, Code of 1906 (Hemingway’s Code, section 1771), provides:

“It shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have the same probated and registered by the clerk of the court granting letters, within one year, which notice shall state that a failure to probate and register for one year will bar the claim, and the time when the letters were granted,” etc.

Section 2107, Code of 1906 (Hemingway’s Code, section 1775), provides:

“All claims against the estate of a deceased person, whether due or not, shall be registered, probated, and allowed, in the court in which the letters testamentary or of administration were granted, within one year after the first publication of'notice to creditors to present their claims; otherwise the same shall be barred, ’ ’ etc.

On March 18, 1920, the day of the first publication of the notice here in question, the Governor of the state approved chapter 302, Laws of 1920, by which section 2103, Code of 1906 (Hemingway’s Code, section 1771), was amended so as to substitute six months for one year wherever the same appears therein. On March 4th following the Governor approved chapter 303, Laws of 1920, by which section 2107, Code of 1906 (Hemingway’s Code, section 1775), was amended so as to substitute six months for one year, wherever the same appears therein.

The notice here in question is in accordance with the limitation prescribed by the Code of 1906, and one of the contentions of counsel for the appellants is that it is void for the reason that it should have stated the limitation to be six months, in accordance with chapter 302, Laws of 1920.

We will assume for the sake of the argument that this last-named statute was in force when the publication here in question was first made. Nevertheless the limitation oil the time within which creditors should probate their claims still remained as twelve and not six months, for that limitation was fixed not by section 2103, Code of 1906 (Hemingway’s Code, section 1771), or the amendment thereof by chapter 302, Laws of 1920, but by section 2107, Code of 1906 (Hemingway’s Code, section 1775), and was not changed until the approval by the Governor of chapter 303, Laws of 1920. If this last statute had not been enacted, the limitation would have remained twelve and not six months, and a notice to the contrary, in accord with chapter 302, Laws of 1920, would not have changed the time from twelve to six months, although in accordance with the statute dealing specifically with the form of the notice. The information as to the limitation on the time in which claims should be probated given in the notice here under consideration being accurate, it would be absurd to hold that the notice was void because another and erroneous limitation was not stated therein.

Affirmed.