Gibbs v. Sims' Estate

Peyton, J., delivered the opinion of the court. [709] It appears from the record in this case, that the estate of William H. Sims, deceased, was duly administered in the Probate Court of Hinds county. And- that in the course of administration it was, on the 6th day of February, 1866, dtdy declared insolvent; that the time for presenting claims against said estate, under the decree of insolvency, expired on the third Monday of April, 1861; and that the clerk made out, on the 3d day of July, 1861, a statement of certain claims for a pro rata participation of the assets of said estate, and reported the same to the court, omitting the claims held by the appellant, which were a note made by the deceased for $1,503.95, duly probated and registered in the register kept by said clerk, on the 6th day of February, 1863, and an open account for $103.26, which was likewise duly probated and registered on the 6th day of February, 1863; and the said note and account held by the appellant against the estate of said decedent as aforesaid, were again registered on the 25th of June, 1861. At the August term of said court, 1861, the appellant excepted to said report of claims, on the ground that his claims against the estate, having been previously probated and registered in the register kept by the clerk, were not included in the report. Also Mrs. Anna M. White, executrix of the last will and'testament of said decedent, at the same time excepted to said report, on the ground that it does not embrace all the claims which had been duly probated and registered by the clerk in the register of claims kept by him for that purpose. The exceptions were ovérruled by the court, and the report confirmed. To which decree of the court, overruling said exceptions and confirming said report, excluding appellant’s claims from a pro rata share of the assets of decedent, the appellant excepted, and took an appeal to this court; and assigns for error, the rejection of his claims on the ground that the same had not been formally presented to the clerk as commissioner of insolvency. The statute under which these proceedings were had, provides that when an estate is reported insolvent, the Probate Court shall order the executor or administrator to give six [710] months’ notice thereof, by publishing such notice in some newspaper printed in the county, or in some convenient county, in which notice creditors shall be notified to come forward and have their claims duly probated, and registered in the register kept by the clerk; and any creditor who shall not register his claims by the day stated in the order of publication, not to be less than twelve months from the date of the first publication, shall be forever barred. And when the time for presenting claims has elapsed, the clerk shall make out a statement of all the claims registered, specifying each claim, and the amount thereof. And the court shall thereupon cause notice to be published in some newspaper printed in the State, for at least three successive weeks, that at the next, or some succeeding term, the claims will be taken up for examination and allowance, and that all creditors are requested to attend; and at the time appointed, the court shall proceed carefully to examine into the validity of each claim, and may require such as may seem doubtful to be established by competent evidence, and may reject in whole or in part, any claim which is not well founded; and the executor or administrator, or any creditor, may object to the allowance of any claim. Rev. Code 449, art. 101. This case involves a construction of the above-mentioned statute, which is different from the statute of 1848, which requires the creditors of an insolvent estate to file their claims against the estate, probated according to law, with the clerk of the Probate Court, whose duty it shall be to report the claims, thus filed with him, to the court, at its next regular term, when the court shall give notice to creditors and others interested in said estate, to appear in said court, at some succeeding term thereof, to show cause why said report should not be allowed. Pamphlet Acts of 1848, p. 158, sec. 5. Under this last named statute, this court has decided in the case of Hansell v. Forbes, 33 Miss. 42, that unless such claims were filed with the clerk before the expiration of the time, given in the notice to creditors, for probating and registering the same, the clerk is not required to report the claims omitted to [711] be filed with him to the court although they may have been duly probated and registered in his office. The statute of 1857 does not require (as that of 1818 does) that creditors shall probate andj?Z<? their claims with the clerk, but that they shall have their claims duly probated and registered in a register kept by the clerk. And when the time for-presenting claims has elapsed, the clerk shall make out a statement of all the claims registered. To enable him to do this, it is very evident that he must resort to his register, and it is from that equally evident he must make out his statement which is to include all the registered claims. Any statement that does not embrace all the claims registered would not be in compliance with the requirements of this statute, and cannot, therefore, be sustained. In such eases the ordinary course pursued by creditors is, to present their claims within the proper time to the clerk and have them, after they are probated and allowed, registered in his office; and after this is done, they usually retain them in their own possession, as they are not required to be filed with the clerk. It is not, therefore, to be presumed that the clerk, when he makes out his statement of the registered claims against the estate, for the information of the court, has all the claims themselves .in his possession, and he must, necessarily, in making out his statement of all the claims registered, have recourse to the register kept by the clerk. "When this statement is made out and reported to the court, notice is given to the creditors of the time when the claims will be taken up for examination and allowance. It then becomes the duty of the creditors to appear- and sustain their claims, thus registered, by producing to the court the evidence of existing indebtedness on the part of the estate to them, and support, the same when doubtful or contested, by the necessary and proper proof. In this way, justice may be more certainly done to all parties interested in the estate. We think the language and meaning of the statute, as well as the ends of justice, require this construction. And as the statement of the claims against said estate, made out by the clerk, and reported to the court, does not embrace [712] the claims of the appellant, which had been previously probated and registered, we think the court erred in overruling the exceptions and in sustaining the report. The decree will, therefore, be reversed, and the cause remanded for further proceedings in the court below, in accordance with this opinion.