Merchants' & Farmers' Bank v. Kelleher

HoldeN, J., delivered the opinion of the court. C. Phillips died intestate in Lauderdale county, leaving a small estate; his debts exceeding the value of the estate. An order was taken by the administrator declaring the estate insolvent, and notice was given to the creditors to file their claims for examination, as required by section 2117, Code of 1906 (section 1785, Hemingway’s Code). The claim of appellant for seventy-one dollars and twenty-five cents was duly filed. with the clerk under said notice. At the time appointed by the court to examine into the validity of the claims filed with the clerk, other claims amounting to more than two hundred dollars, which were accounts due for the expenses of the last sickness and funeral of the deceased, were presented and allowed by the chancellor as preference claims over the common claim of appellant. The amount of the preference claims allowed exhausted the estate, leaving nothing in the hands of the administrator with which to pay the claim of the appellant herein. The said preferred claims allowed were not filed with the clerk by the day named in the notice, as required by said section 2117, but the chancellor allowed these claims at the hearing because they were preference claims under section 2113, Code of 1906 (section 1781, Hemingway’s Code), and from this order allowing the preference claims this appeal was taken. [239] The requirement of said section 2117, Code of 1906, “that all claims must he filed with the clerk by the day named in the notice,” and “a claim, unless filed with the clerk by the day named in' the notice, shall not be allowed, but those not filed with the clerk shall not be barred as to any surplus that remains after paying in full those filed,” is mandatory, and is applicable in the case before us. The claims for the expenses of the last sickness and funeral cannot be allowed, except out of any surplus that might remain after paying those claims which were filed, unless such preference claims be duly filed by the day named in the notice as required by the statute. Therefore the preference claims allowed in this case by the lower court can be paid only out of the surplus, if any, after the claim of appellant, which was duly filed, has been fully paid. The question here involved is settled by the statute, and also by the case of Greener v. Neal, 61 Miss. 204. The decree of the lower court is reversed, and the cause remanded. Reversed and remanded.