
    Wade G. Walker v. James B. Nelson, Executor, Etc.
    [39 South. Rep., 809.]
    Estates oe Decedents. Probated claim. Open account. Code 1892, § 1932.
    Under Code 1892, § 1932, providing for the probation of claims against the estates of decedents, an open account is not properly-probated and cannot be recovered upon in a suit against the executor if it:
    (a) Is not signed by the creditor; or
    (S) Does not have the statutory affidavit “attached thereto.”
    Erom the circuit court of, first district, Pauola county.,
    Hon. E. 0. Holmes, Special Judge.
    Walker, the appellant, was plaintiff, and Nelson, executor of the last will and testament of B. H. Porter, deceased, was defendant in the court below. The suit was upon an open account for goods, wares, and merchandise sold by pl-aintiff to the testator in his lifetime. WTiile the account purported to be'probated, yet its probation was defective in the particulars mentioned in the opinion of the court.
    Erom a judgment in defendant’s favor the plaintiff appealed to the supreme court.
    
      L. F. Rainwater, and W. E. Booth, for appellant.
    The sole question presented by the record in this case is as to the sufficiency of the affidavit to the account sued on. The objection urged against the sufficiency of the affidavit is based upon the case of GheaviF Executors v. Gheairs’ Administrators, 81 Miss., 662, in which this court held that there must be a substantial compliance with Code 1892, § 1932, to render the probate of an account against the estate of a deceased person valid. The Gheairs case differs very materially from the one a't bar. The affidavit in the ease at bar contains everything required by sec. 1932, supra, except the signature of appellant to his account, while in the Oheairs case several matters of substance were omitted — viz.: It did not state that the claim was not usurious, nor that neither the affiant nor any other person had received payment, nor that it was owing from the deceased — all of which are in the affidavit for probate in the case at bar.
    The court in the Oheairs case, supra, say: “'Both accounts and written evidences of debt must be accompanied by the substance of the prescribed affidavit. In the case before us (Oheairs case) the claim may be usurious for aught we know. No one can say from its face that it is not, and the affidavit should show that it is not. We do not say whether the other omissions mentioned at the outset are fatal or not.”
    The court evidently did not intend to hold, and did not hold, that any omissions not of substance would vitiate the probate, nor that the statute is mandatory as to matters not of substance. This court has repeatedly held that the signature of the affiant to an affidavit is .not essential; the certificate of the officer that the affiant was sworn, etc., is the evidence of the fact that the affidavit was made, and does not require the signature of the affiant. Broolcs v. Snead, 50 Miss., 416; Goppoch v. Smith, 54 Miss., 640; Dwnlap v. Glay, 65 Miss., 454.
    
      A. W. Shands, for appellee.
    'Code 1892, § 1932, is mandatory. No one can make the affidavit for the probate of a claim except the creditor himself. M'cWorier v. Donald, 39 Miss., 779; Sims y. Sims, 30 Miss., 333 ; Gray v. Hatris, 43-Miss., 421.
    ■A compliance with sec. 1932 is a jurisdictional prerequisite to a suit on an open account against the estate of a decedent.
    It is not a matter that goes to the testing of the validity of the claim, but is jurisdictional. Oheairs v. Oheairs, 81 Miss., 662.
    This account, not being signed anywhere by the creditor himself, is improperly admitted to probate; and as tbe signing of it was a jurisdictional jirerequisite to the admission of it to probate by tbe chancery clerk, bis act therein may be attacked collaterally. Oheaws v. Oheairs, supra.
    
   Truly, J.,

delivered tbe opinion of tbe court.

Unless we intend to depart from tbe plain path marked out by previous decisions of this court, commencing with tbe McWorter case, 39 Miss., 779 (80 Am. Dec., 97), and followed until tbe present day, and expressly overrule tbe principle announced in tbe Cheairs case, 81 Miss., 662 (33 South. Rep., 414), tbe latest adjudication of this question, we are constrained to affirm tbe judgment in this case. Tbe itemized account attempted to be probated against tbe estate of tbe decedent was not “signed by tbe creditor,” nor was there any affidavit “attached thereto.” Tbe proof seeking to establish tbe correctness of tbe items of tbe account was properly rejected, because tbe claim itself was not probated in tbe formal manner required by tbe statute.

Affirmed.  