Gaulden v. Ramsey

Smith, C. J., delivered the opinion of the court. The appellee filed his petition in the court below in the matter of the administration of the estate of Mrs. O. D. Graves, deceased, alleging that the time for probating claims against the estate had expired; that his claim of one thousand three hundred and eighteen dollars was the only claim probated against the estate; that it was necessary for certain lands of the decedent to be sold in order that from the proceeds thereof his claim against the estate might be paid, and prayed that the administrator be ordered to make this sale and apply the proceeds, thereof to the payment of his claim. The principal item of this claim, as set forth in the probated statement thereof, is: [10] “To care and attention including board, lodging, medical care and drugs prior to last illness, aud service for three years prior to the death of said Mrs. O. D. Graves, and being from April 20', 1913, to April 301, 1916, one thousand and eighty dollars.” The remainder is for the funeral expenses of the deceased, and two other items described as “Doctor’s bill last illness, thirty-six dollars,” and “drug bill paid, ten dollars.” The affidavit to this claim required by section 2106, Code of 1906' (section 1774, Hemingway’s Code), was made by the appellee. The administrator and the heirs of the deceased answered this petition, denying the validity of the appellee’s entire claim, and alleging: First, that it was not probated in the manner required by law: and, second, that it is barred by the statute of limitations. There was a decree in accordance with the prayer of the petition, and an appeal to settle the principles of the case was granted the administrator. The payment by the appellee of the funeral expenses of the deceased and her physician’s and drug bills was fully proven, and the appellant’s claim that the appellee had sufficient money in his hands belonging to the deceased to cover these items is not sustained by the evidence. The appellant introduced no evidence in denial of the first item of the appellee’s claim, and the evidence for the appellee is to the effect that the deceased was his mother-in-law; that for fifteen years immediately preceding her death, which occurred on April 20', 1916, she lived with him as a member of his family, the last three years of which being spent by her continuously in his home, she having been accustomed prior thereto to occasionally visit other members of her family, during all of which time the appellee gave her “board, lodging, care, and attention” worth thirty dollars per month; that the deceased expected to pay the appellee for her care [11] and maintenance and had promised so to do. This evidence is sufficient to‘ support the appellee’s claim for compensation. Hutcheson v. Tucker, 15 So. 132; Bell v. Oates, 97 Miss. 790, 53 So. 491; Hoyle v. Smith, 113 Miss. 729, 74 So. 611; 21 Am. & Eng. Ency. of Law (2d Ed.), 1061; 18 Cyc. 412. Section 2106, Code of 1906 (section 1774), Hemingway’s Code), requires a person desiring to probate a claim against the estate of a deceased person, in the absence of written evidence thereof, to present to the cleric of the chancery court “an itemized account or a statement thereof in writing signed by the creditor” etc. The first item of the appellee’s claim is not evidenced by writing nor does it consist, in so far as it relates to care and attention, including board, lodging, and services, of separate items, but consists of one item only, based on a continuing parol contract. It is true that the statement of the claim includes, medical care and drugs, and it may be that these items should have been more specifically described, but that defect in the statement of the claim, if such it is, is not material, for the reason that the amount claimed is not in excess of that due the appellee for board, lodging, and services, which is properly set forth in the statement. If the statute of limitations commenced to run against the appellee’s claim for board and lodging when furnished and for services when rendered, it may be that because of the length of time that elapsed after the death of the deceased before the claim therefor was probated a part of it would be barred. But this statute did not begin to run against this claim until the death of the deceased, and it was probated within the required time after her death. As hereinbefore stated, the deceased was living with the appellee under a promise to pay him for her board, lodging, and services, which board, lodging and services were of necessity continuously furnish [12] ed, and rendered, with no time fixed for the payment by the deceased therefor or for the termination of •the contract. Consequently the contract, and it is immaterial whether it was an express or implied contract, was a continuous one, and the statute of limitations does not begin to run against such a contract until it has terminated , which in the case at bar was by the death of the deceased. 3: Elliott on Contracts, section 2661, p. 798; 25 Cyc. 1077, 1104, et seq.; 1 Wood on Limitations (4th Ed.), p. $661, section 119c (2); Sullenbarger v. Ahrens, 168 Iowa, 288., 150 N. W. 71; Crampton v. Logan, 28 Ind. App. 405, 63 N. E. 51; Bowie v. Trowbridge, 158 Iowa, 99, 138 N. W. 846. It is unnecessary for us to determine whether the appellee’s claim for the funeral expenses of the deceased is set forth in the manner required by section 2106, Code in 1906 (section 1774, Hemingway’s Code), for the reason that it need not have been probated at all. It is not a claim against the' deceased (Dobbs v. Chandler, 84 Miss. 372, 36 So. 388), and it is only claims against the deceased which the administrator is forbidden to pay unless it has been probated (section 2105, Code of 1906; section 1773, Hemingway’s Code). It is the duty of an administrator to bury the deceased 'and to ipay the expenses incident thereto out of the property of the deceased; Donald v. McWhorter, 44 Miss. 124. And, if this expense has been incurred prior to the appointment of the administrator, it becomes a charge against him after his appointment payable'out of the property of the deceased. The physician’s and drug bills, are debts against the deceased, as they were necessarily incurred in her lifetime, and, as the evidence does not disclose that they were paid by the appellee at the request of the deceased, they should have been separately, probated on the affidavit of the original creditors that they were "'just, correct, [13] and owing from the deceased,” etc., in accordance with the provisions of section 2106, Code of 1906 (section 1774, Hemingway’s Code). McWhorter v. Donald, 39 Miss. 779, 80 Am. Dec. 97; Persons v. Griffin, 112 Miss. 643, 73 So. 624. These two items of the appellee’s claim should not have- been allowed. Reversed and remanded. Ethridge, J., dissents.