The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1866-11-03
DECISIONS OF THE HIGH COURT
ERRORS AND APPEALS.
APRIL TERM. 1859.
Reported Expressly for the CIarioa.
CHIEF JUSTICE Elicit DELIVERED IliE
OPINION OF THE COURT.

Error 10 the Circuit court % hot"st0
County.
CHIEF JUSTICE ELICIT DELIVERED HE
OPINION OF TIE COURT.
The plaintiff in error declared on an open
account The defendants pleaded that the /
claims sued on was not registered WITHIN /
two wears after publication OF notice 10
creditors. The plaintiff replied that tne (
defendants had notice of the existence OF the /
said claim within two years after said pueH-
cation. The defendants demurred to THIS
replication. and the Court sustained the de-
mnrrer. and gave Judgment for the defend
ants The propriety OF TINS decision Is tle
question for our consideration
The statute under which the question
arises is as follows: ''All claims against the
estate of deceased person, whether due OF
not, shall be registered in the Court IN
which the letters testamentOTy or Of admin
istration were granted within two years u
ter the first publication ofnOtice to creditors
to present their claims, as required by the
9TH section of this act, or the claim. shall be
barred. and no suit or action shall be sus-
tanned thereon, either at law or H. equity:
Rev. Code 444 art, 50. And the question Is
whether actual notice to the administrators
of an unregistered claim, viii take Fhe case
out of the operation of the statute
IT seems clear that effect cannot be gwen
TO the article quoted according to the 1ulI
/ and literal import of its terms, i0r II a sun
/ should be brought before the expiration OF
! the two years allowed for the reglstfatlon OF
/ claims it could not be pretended mat suc1
| .uit could afterwards be barred by reason OF
/ a failure to register the claim within the
/ time limited, but the suit would proceed 90
/ trial and Judgment as mother cases. DO II
/ sr1if shnnid be brought and Judgment re-
( corver against the administrator WITHIN the
! two wears the want OF subsequent TeglStrst-
| ton could hardly be iuterposed as an o6Jec-
! tiOn to the regularity of an execution II sueo
4 upon such Judgment.
Again. the statute does not create NM
/ tation operating in all cases in favor OF es-
/ tates of decedents, from q definite time fixed
/ by the law, or ascertaIued by reference TO
/ the records Of the Probate Court On the
I contrary the limitation does not begin to
/ run except on the previous performance OF a
{ duty eniOined upon the administrator, the
/ discharge of which is a matter IA pms, and
/ of which the records OF the Court do not
/ necessarily furnish any information. 1t
runs only from the first publication OF no.
tice which the administrator is required to
publish in some newspaper within two
/ months after the grant of his Letters. Rev.
Code 443 art 81. The object of this latter
1 requiTement,as declared expressly on the face
of the act, is that the true condition OF
the estate may be speedily known, so
that the Administrator may proceed to pay
assets which may come to his hands, II the
estate be solvent. The notice to be thus
given, requires the creditors to have their
claims registered within the time prescribed
by law, OF they will be barred. Article IL
! of the same act provides for the keeping OF
the book, and directs the manner OF regis
tering claims, and Article % limits the time
within which such claims must be registered.
/ 1t is thus seen that the object of all these
proceedings is to furnish the Administrator
with early information of the true condition
| of the estate, and to enable him to proceed
promptly and speedily in its settlement
The registration comes ia place OF the pres
entation to the Administrator reqUiredundeI
former laws, and greatly simpHfe5 and
facilitates the proceedings. The otnce OF
the Clerk of tie Court is now made the place
where, at the same time they probate II Ell
claims, the creditors present them to the
= Administrator, by causing them to be entered
upon the register, and where the Admins
traitor can at any moment ascertain the
number, character and amount of the debts
exhibited against the estate.
, These provisions are the result of a revls
ion of the former laws on the same subject
and reference to the old statutes, IN con
trast with the new, viii not only show the
? wisdom of the latter, but in connection with
the judicial Interpretation pat upon the
former, viii greatly aid in conducting us t
% u proper conclusion in relation to the matter
1 under consideration.
2 The act of 1921, Hutch. Code, 67l, Sec. ll5
3 contained the following provision. Cal
claims against the estate of deceased persona
shaA be presented to the Executor, Admin
istrator, or Collector, within eighteen
g months after the publication of notice 70
that purpose by such Executor, Admnistra
SaAt' sha1L 70 Aolv 5es4rvtt, ls51
o. the teStator or lntestate, shall be uhC.aat
ter discharged from the payment OF sucl
claim or claims and the Executor, Admins
traitor, or Collector may give this act in evi
dence without pleading the same specially
IN bar OF any suit of action, either in law o
equity brought to recover the amount of an,
claim or claims Of which notice had not beei
| given by the creditor or creditors. according
to the foregoing provisions" Three YEAR
were allowed to nonresident creditors t
| present their claims and by an act passed
| IN 1916, Clutch. Code, 6SI) both these peri
! DDS Of limitation were repealed and TIVE
years adopted in both cases. The latter act
also contained the provision that "to auth
orize collection of any clam, and the pay
ment thereof by the Executor or Admins
traitor, the same shall first be probated by
the court in which the estate is administered
shall be recorded therein, and shall be certt
fed by the Judge thereof under his hand as
examined and allowed
1t appears that with the exception of the
substitution of registration for presentation
the present law contains in substance the
same provisions that were in force before the
Revised Code was adoptcd. Presentation
was then required for the same reason that
registration IS now made necessary, and the
same consequences resulted from failure to
make presentation III the proper time and
manner that now follow an omission to r..
glster the claim IN the mode provided
The question OF the suf1iciencv Of the pre-
| sentiment of claims under the old law was
to avoid the limitation, has been frequently
considered b. this court, and it has been uni
tormly held that it was only neceSsarvtO shaw
by legal evidence that the administrator had
knowledge OF the existence of the claim. no
/ matter from what source that knowledge was
/ derived. In the case of Helm VS.. Smith. D
| :. * NJ. 4O3, the court held that the object of
/ the presentation was nothing more than to
| inform the administrator OF the claims
! against the estate, and that it was therefore
! legitimate to show notice of such claims 10
! the administrator by any legal evidence that
would establish the fact of his KNOWLEDGE of
/ its existence, to the satisfaction of a iurv
/ because the design OF the statute wouId bf
/ thereby accomplished; and that a notice oa
the protest OF a promlsSary note made out by
a notary public III the usual form and do
! posted by him in the postoffice. addressed
to the endorser at his usual place of resi-
dence, the endOrser having died before the
maturity OF the note. was a good present
ment of the note to the executor of the en-
dOrser, the executor being IN the habit of
receiving his own letters at the same most
office. Proceeding expressly upon the same
ground that the object Of presentation was
to let the administrator know the condition
/ of the estate. 1t was held in the case of
Miller vs. Helm, IN the same volume. pace
6S7, that no presentation was necessary in
cases where the tacit lien existed niven nv
statute to secure the purchase money of
property sold by executors and administra
tors such liens being considered Of raoor1
and therefore always in a state OF preseDt9
ten. In Gordon VS.. Gibbs, 8, S. q NJ AYR
it was decided that an administration bond
on which the deceased was a surety. was al
ways in a state of presentation, being mat
ter of record and notice to every one. and
that no presentation to the administrator of
such surety, was necessary to be made of a
claim arising upon the said bond in conse
quence OF breach of the condition by the
principal. In Miller vs.. Trustees of Jeffer-
son College, ;, 5. 81 NJ. 651, it v as ruled that
a debt secured by mortgage need net
be presentee, the mortgage being of record
and therefore constructive notice TO the
admin cfTat0r. Tn +hiS