Bankston v. Coopwood

Anderson, J., delivered the opinion of the court. Albert Coopwood, the appellee, as executor of the will of T. D. Coopwood, deceased, was administering the estate of said decedent in the chancery court of Tunica county. - The appellant, Dr. L. L. Bankston, having a claim against said estate of two hundred and fifty-two dollars and forty cents, for medical services, on June 6, 1910, attempted to probate his claim. The claim was properly itemized, and had attached to it the affidavit in due form provided for by the statute, signed by the ap [514] pellant; but the itemized account itself was not signed by him. Tbe' court below held that the failure of the appellant to sign the itemized account rendered void the probation of the claim. It is contended on behalf of the appellant that the signing by him of the affidavit attached to the account was a sufficient signing of the account itself, and amounted to a substantial compliance with the statute. Section 2106 of the Code of 1906 provides: “Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, or, if the claim be a judgment or decree, a duly certified copy thereof, or, if there be no written evidence thereof, an itemized account, or a statement of the claim in writing, signed by the creditor, and make affidavit, to be attached thereto, to the following effect, viz., . . .” To sustain his position, the appellee relies on the case of Walker v. Nelson, 87 Miss. 268, 39 South. 809. In that case the court said: “The itemized account attempted to be probated against the estate of the decedent was not signed by the creditor, nor was there any affidavit attached thereto.” "We have examined the original record in that case, and find that the creditor signed neither the - account nor the affidavit attached thereto. That case, therefore, is not authority for the contention here made that a signing of the statutory affidavit attached to the account is not a sufficient signing of the account. Such a contention was not presented to the court, and the language used by the court in that case was addressed to the particular facts of the case. A substantial, and not a literal, compliance with the statute is required. “A statement of the claim in writing signed by the creditor” is necessary under the statute; but a signing by the creditor of the affidavit is a substantial compliance with this requirement. The affidavit is attached to the account, and is a part of it. The purpose of the statute in requiring the claim to be signed is to identify it and [515] verify its correctness. A signing of the affidavit attached to the claim is necessarily a signing of the claim itself in the sense of the statute. The statute does not point out any particular place where the claim shall be signed. jReversed and remanded.