Claiborne County MsArchives Court.....Campbell, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Campbell, Appellant, v. Young et al., Ex’rs.

pages 301-303

The 90th section of the orphans’ court law regulating the authentication of 
claims against the estates of deceased persons, was only designed to protect 
the administrator or executor against the consequences of wrongful payments 
which he may choose to make voluntarily; for if he discharges a debt without 
the voucher required by 1aw, he does it at his own risk.

The creditor’s right to sue for the recovery of his claim is not in any way 
affected by the statute.

APPEAL from the circuit court of Claiborne county.

This was an action of debt upon a writing obligatory. The defence relied on by 
the appellees was the statute of limitations, which bars all claims against 
the deceased, unless the same shall be presented to his executors or 
administrators within eighteen months after publication of notice by them for 
that purpose. The note which was sued on in the court below, was presented to 
the appellees for payment before the expiration of the eighteen months, but it 
had not been authenticated according to the requisitions of the 90th section 
of the orphans’ court law. The court below, under this proof, instructed the 
jury that the plaintiff could not recover; and this is the ground of the error 
assigned.

Thrasher, for the appellant.

1. This cause depends on the construction of the statute, and that the court 
erred in the charge set out in the first error assigned, is evident from the 
fact, that the authentication spoken of in the 90th section of the Code, p. 
53, is directory to the administrator or executor, and imposes no duty on the 
creditor of a deceased person. Such creditor is neither bound nor required by 
the 90th section so to authenticate his claim, nor is he laid under any 
disability for not doing so; the statute has no bearing on the creditor, and 
he is not included in the provisions of the section. Such authentication is 
not necessary in order to enable him to sue, nor would it, nor could it be 
used as evidence in a suit. It has been the settled practice in the state, for 
the past twenty years, to entertain suits on notes, bills, bonds and accounts 
against the representatives of deceased persons, without such authentication 
and that such authentication was not necessary in order to maintain a suit, 
has been the decision of all the courts of the state.

2. That the court erred in the charge set out in the second assignment, is 
also evident from the same section of the Rev. Code, p. 53, and from the 115th 
sect. p. 63, which latter section declares that all claims against the estate 
of deceased persons, shall be presented to the executor or administrator, or 
collector, within eighteen months after publication of notice for that 
purpose, and not after. This section speaks not of authentication; nor does it 
require them to be authenticated when so presented. What, then, is the ratio 
legis evidently to operate as a notice that such claim is outstanding, and to 
enable the executor or administrator to settle the estate correctly by knowing 
its true situation?

3. The third assignment constitutes error for like reasons, even if the 
position of law assumed by the court, was correct. Yet the issues joined 
between the parties would not admit of such a charge. The issues were, that 
the writing obligatory, mentioned in the declaration, of which oyer had been 
given, had not been presented within eighteen mouths; the plaintiff proved 
that it had been so presented; and there the matter ought to have been at an 
end. It was the issue upon which the parties had agreed to try the case, and 
to rest the matter; for no mention is made in either of the pleas, which were 
special, of the claims not having been presented duly authenticated, but 
simply that it had not been presented as it was filed in the declaration where 
upon the court could not charge on matters not in issue between the parties.

Montgomery, for the appellees.

The statute requires that executors shall not pay any claims against their 
testator, unless an affidavit be attached or endorsed on the evidence of the 
claim; in case of a bill single, that no part of the money intended to be 
secured by such instrument has been received, &c. Rev. Code, p.53, sect. 90.

All claims against deceased persons are to be presented in eighteen months, to 
the executor, after publication of notice; and if not presented, they shall be 
barred, and the estate discharged therefrom; and the act may be given in 
evidence in bar of any claim, of which notice had not been given according to 
the foregoing provisions. Rev, Code, p. 63, sect. 115.

The next section prescribes the time and mode of giving notice to creditors to 
produce their claims.

A bill single is not a claim against the estate of the deceased, which the 
executors are authorised to pay, unless accompanied by the affidavit required 
by the statute.

The affidavit required is not proof of the original legality of the claim, but 
that it has not been discharged or satisfied by deceased in his lifetime. The 
statute was clearly intended to protect estates from the payment of claims 
without some satisfactory evidence that they had not been paid or liquidated; 
and the slightest evidence of that which could be required, is the affidavit 
of the party.

BY THE COURT:—We do not think that the creditor’s right to sue for the 
recovery of his claim against a deceased person, is in any way affected by the 
provisions of the statute. It was only designed to protect the administrator 
or executor against the consequences of a wrongful payment which he may choose 
voluntarily to make. If the demand is fraudulent, the proof required by the 
statute will yet protect him; whereas, he discharges it without the voucher 
mentioned and prescribed by law, he does it at his own risk. This is the whole 
design of the act. This case is precisely that of John Smith v. Prestwood 
Smith's Administrator, which was decided at a former day of this term, ante, 
216.

The judgment must therefore, be reversed, the cause remanded and a venire de 
novo awarded.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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