Rogers v. Rosenstock
Rogers v. Rosenstock
Opinion of the Court
• delivered the opinion of the court.
■ This appeal questions the decree of the chancery court of Sharkey cóunty allowing the claims of certain creditors of the estate of Bernard Sinai, deceased, and disallowing the claim of M. H. Bogers. M. H. Bogers, Charles W. Buck, Pearl & Kline, Mississippi Lumber Company, Lee Bichardson & Co., Bernard & Martin,
“Action Against Executor or Administrator. — An action or sciri facias may not be brought against any executor or administrator upon any judgment or other cause of action against his testator or intestate, but within four years after the qualification of such executor or administrator. ’ ’
This section and section 2096a, Code 1906, prohibiting the filing of a suit against the executor or administrator until after the expiration of six months from his appointment have been by this court construed together as giving four years and six months within which an executor or administrator can be sued. The probated notes forming the basis of the claim of Pearl & Kline, matured before the death of Bernard Sinai. This fact renders section 3105 applicable, and limits the time in which this creditor can sue the executor in this case.. Before any suit was filed, the right of the creditor to sue had been barred by the statute of limitations. Under the previous holdings of this court section 3105 has no application to causes of -action which accrued after the-death of the decedent. Bingaman v. Robertson, 25 Miss. 501; Pope v. Bowman, 27 Miss. 194; McLean v. Ragsdale, 31 Miss. 701; French v. Davis, 38 Miss. 218; Sivley v. Summers, 57 Miss. 712; Buckingham v. Walker, 48 Miss. 609. Any uncertainty in the construction of our various statutes of limitations applicable to the administration of an estate of a decedent can be removed by reading- and considering the statutes together, and letting each
On the point that section 3105 of the Code applies, see the following authorities: Boyd v. Lowry, 53 Miss. 352; Champion v. Cayce, 54 Miss. 695; Sivley v. Summers, 57 Miss. 712; Hardenstein v. Brien, 96 Miss. 493, 50 So. 979; Oliver v. Smith et al., 94 Miss. 879, 49 So. 1, and the recent case of Duffy, Adm’r, v. Kilroe, 76 So. 681.
In reference to the direct appeal of M. H. Rogers, we are not justified in reversing the decree disallowing this claim. In the first place the claim is made up of a list of various claims held by different creditors agains't the partnership of Sinai, Port & Co., which claims were transferred to Mr. Rogers. In probating these claims Rogers did not itemize a single one of the several claims against the partnership, but merely listed the total amount of each separate claim, as for illustration, “To claim O. L. Sanders, one thousand, four hundred and seventy-three dollars and eighty cents.” This in no wise gave notice of the items originally composing the claim of Mr. Sanders, and did not sufficiently comply with the statute regulating the manner in which claims must be probated. In the next place the chancellor was justified in holding that Mr. Rogers failed to show that he was the real owner of these claims. What has already been said disposes of the contention of Mr. Rogers that the will created a trust.
The only doubt about the application of the statute of limitations in this case arises upon the1 suggestion that
Upon the direct appeal of M. H. Bogers the cause is affirmed. Upon the appeal of the executor from the decree allowing the other claims complained of the decree of the learned chancery court will be reversed and a final decree entered here disallowing each of said claims; the costs of this appeal to be taxed against all of the creditors whose claims are here brought under review.
Affirmed and reversed.
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- 1. Exectjtoks an» Administrators. Claims against estate. Limitations. Section 3105, Code 1906 (Hemingway’s Code, section 2469), providing that actions may not be brought against an executor or administrator, but within four years after the qualification of such executor or administrator, has been construed by the supreme court in connection with section 2096, Code 1906, prohibiting the filing of a suit against the executor or administrator until after six months from his appointment, as giving four years and six months within which an executor or administrator can be sued. 2. Same. Under section 2107, Code 1906, so providing all claims against the estate of, a decedent must be registered within one year or they are forever barred, and “a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or ádministrator.” If this section is complied with, then under section 2110, the presentation of the claim and having it probated and registered stops “the running of the general statute of limitations as to such claim whether the estate be solvent or insolvent.” 3. Same. Section 3105, is clear and unambiguous, and under the strict language of this section the owner of a probated claim which accrued before the death of the decedent, must insist upon satisfaction or bring his action against the executor or administrator within four years and six months from the date of letters, testamentary or administration, or his rights will be barred by limitation, but this section has no application to causes of action which accrued after the death of the decedent. 4. Exectjtobs and Administkatobs. Presenting claims. Itemizing. Where one who bought up claims against a decedent’s estate in probating them did not itemize them, but listed each by stating the amount and name of the original creditor to whom it was due, this was not a sufficient compliance with the statute. 5. Cdaims Asainst Estates. Limitations. Insolvent estate. While under section 2120, Code 1906, so providing a suit may not' be brought against the executor after the estate has been declared insolvent, yet in lieu of a proceeding at law to recover a judgment, the creditors under the insolvency proceedings are required to present afresh their several demands and have their claim adjudicated by the chancery court. By statute then, the chancery court is not only given authority but it becomes the duty of the court to adjudicate the claims of creditors and to this end to dispose of any objections or contest. In such proceeding creditors and the executor or administrators can file objections to the several claims and in the hearing of these objections and adjudicating the several claims both creditors and representatives of the estate have their day in court. 6. Same. In this proceeding before the chancellor when he finally adjudicates, the claim of each creditor of an estate which has been duly declared insolvent, the creditors or the executor or administrator of the estate may invoke section 3105, Code 1906, providing a four-year statute of limitation, so as to defeat a creditor’s claim against the estate, especially in view of section 3115, Code 1906 (Hemingway’s Code, section 2479), which declares that when the remedy is barred, the right also is barred.