Masonic Benefit Ass'n v. Simmons
Masonic Benefit Ass'n v. Simmons
Opinion of the Court
delivered the opinion of the court.
A bill was filed by Peter Simmons, as administrator of the estate of Robert Wells, deceased, and by Mary Lewis and said Peter Simmons, as individuals and as two of decedent’s heirs, against appellant (a Mississippi corporation), alleging that said decedent, at the time of his death, February 27, 1903, held a certificate in said association, payable to the estate of said Wells; that on March 7, 1904, said Simmons was appointed administrator of same, as shown by exhibit “A,” copy of his appointment; that during his life he complied with every regulation required by said association — paying all dues, assessments, etc.; that said certificate has been surrendered to said association, with proper proof of death, and all requirements of the laws complied with, entitling the said estate to be paid the amount of said certificate, but that the officers of said association refuse to pay the same to complainants; that, if mistaken in alleging that Peter Simmons is entitled, as administrator, to recover same, then that he individually and said Mary E. Lewis, as said heirs, are entitled to recover two-thirds thereof. The bill is not sworn to, and answer under oath is specifically waived. The answer of defendant admits that said Wells was a member of said association in good standing at the time of his death, but alleges that said association had paid
The evidence demonstrates beyond cavil or controversy that on March 1, 1904, said defendant, by its secretary and treasurer, E. E. Perkins, issued its check to said George, administrator, in payment of this $500 due on this certificate (the original check being produced), and that same was paid March 28, 1904, as shown by the receipt of the attorneys of said George to said association. Some attempt was made to show that E. E. Perkins, the secretary and treasurer of said association, had notice of the appointment of said Simmons as administrator before this $500 was actually paid, but, in our opinion, there was a failure to do so; but even if this had been shown, we do not think appellant should be required to pay it again to appellee, who was not appointed administrator for more than five months after a court of competent and full jurisdiction had, in strict accordance with our statutes, appointed said George as administrator of said estate, as the pleadings and
It will be noted that the petition of Simmons for letters of "administration did not disclose to the chancery court of Hinds county, to which he applied for said letters, that letters of administration on the same estate had, several months before, been granted to said George by the chancery court of Leflore county, presided over by a different chancellor.
Reversed and remanded.
Reference
- Full Case Name
- Masonic Benefit Association v. Peter Simmons, Administrator
- Status
- Published
- Syllabus
- 1. Chancery Pleading and Practice. Code 1893, \\ 534. Answer. Corporation. The secretary and treasurer of a beneficial association, haying the custody of its records and vouchers, may make oath to its answer in chancery, under Code 1892, § 534, providing that the answer of a corporation need not he under its seal, hut may be sworn to hy its president, general manager or superintendent, or other general officer. 3. Same. Setting out instrument. Denial must he under oath,. Code 1893, l 1797. The fact that an answer under oath was specially waived hy the hill does not affect the statute, Code 1892, § 1797, providing that in suits founded upon any written instrument set forth in the pleadings it shall he unnecessary to prove the execution thereof unless the same he specially denied hy plea under the oath of the party pleading it. 3. Same. When statute inapplicable. But the statute (Code 1892, § 1797) has no application in a suit hy an administrator, setting up his letters, where the answer pleads payment to a previously appointed administrator, the issue being one of payment rather than of the representative capacity of complainant.