        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-CA-01345-COA

IN THE MATTER OF THE ESTATE OF                                           APPELLANT
GEORGE LEE JONES, DECEASED:
JIMMY FAIRCHILDS, EXECUTOR OF THE
ESTATE OF GEORGE LEE JONES, DECEASED

v.

DELTA FOUNDATION INC.                                                      APPELLEE

DATE OF JUDGMENT:                        08/15/2016
TRIAL JUDGE:                             HON. VICKI R. BARNES
COURT FROM WHICH APPEALED:               WARREN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                  FRANK G. VOLLOR
ATTORNEY FOR APPELLEE:                   TONYA P. FRANKLIN
NATURE OF THE CASE:                      CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                             AFFIRMED IN PART; REVERSED AND
                                         REMANDED IN PART - 06/05/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES AND WILSON, JJ.

      BARNES, J., FOR THE COURT:

¶1.   This dispute stems from two probated claims against George Jones’s estate by

creditor Delta Foundation Inc. (Delta) in the Chancery Court of Warren County. The two

claims of $88,740.05 and $116,228.17 relate to two promissory notes taken out by Three

Rivers Transit Inc. (Three Rivers) in 2005 and renewed in 2008. In 2005, Jones signed the

notes individually and on behalf of Three Rivers. In 2008, however, he did not sign the

notes individually but only on behalf of Three Rivers. Jones passed away, and Delta

probated its claims, attaching the 2008 notes. The executor of Jones’s estate (the Estate)
objected, claiming that the debt belonged to Three Rivers, not Jones individually. Delta

filed a motion to amend its probated claims in order to attach the 2005 notes. The motion

was granted, but the 2008 notes were again erroneously attached to the claims.

¶2.    Delta then filed an “amended motion to amend probate claim” to correct the error,

which is the subject of this appeal. The Estate again objected, arguing that the 2005 notes

were extinguished by the 2008 notes. After a hearing, the chancellor granted Delta’s motion

to amend the probated claims. Aggrieved, the Estate appealed the ruling.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶3.    Jones operated Three Rivers, a business which transported and set up mobile and

manufactured homes. Delta is a non-profit organization that assists small-business owners

with financing their operations in order to encourage them to remain in rural areas.

Documents entered into evidence establish that in February 2000, a “Loan Transaction” was

entered into between Three Rivers and Delta evidenced by a promissory note and deed of

trust to secure a loan of $122,750, maturing March 1, 2007. The deed of trust was signed

by Jones on behalf of the “Debtor” Three Rivers.1 On the same date, Jones and his wife

executed two deeds of trust to Delta to secure the loan of $122,750 and another loan of

$152,250 to Three Rivers, also maturing on March 1, 2007.2

¶4.    On January 15, 2005, Jones and Lee Pinkston executed two promissory notes


       1
        The Three Rivers deed of trust attached a property description on approximately
nine acres in Warren County, Mississippi.
       2
         The Jones deeds of trust secured “all future and additional advances” by Delta to
Three Rivers and “any and all other indebtedness” of Three Rivers to Delta. The property
descriptions were of a mobile home and the land on which it was located in Warren County.

                                            2
“Individually and on behalf of Three Rivers Transit, Inc.” Loan number 56 included a

principal of $109,787.57 and loan number 113 of $141,319.32, with monthly payments of

$1,111.54 and $1,430.79 respectively. The “Borrowers” were Three Rivers, Jones, and

Pinkston. Both loans were provided at a four-percent interest rate for 120 months, with the

final payment due in January 2015. The notes recited that they were secured by a security

agreement which encumbered certain personal property of the Joneses. The 2005 notes

provide:

       Borrowers waive demand, protest, presentment, notice of demand, protest,
       nonpayment and dishonor, and all other notices. No extension of time for the
       payment of this Promissory Note made by agreement with any person now or
       hereafter liable for the payment of this Promissory Note shall operate to
       release, discharge, modify, change, or affect the original liability under this
       Promissory Note of Borrowers, either in whole or in part, if Borrowers are not
       a party to such agreement.

¶5.    On September 22, 2008, the loans were renewed. The “Borrower” was Three Rivers.

The monthly payments were lowered, the interest rate was increased, and the final payment

dates were extended. The loan numbers of 56 and 113 did not change, and the principal

amounts had been reduced to $91,801.15 and $117,570.39, respectively, with monthly

payments of $1,065.89 and $1,365.09. The interest rate was increased to seven percent for

120 months, with the final payment due in October 2018. The note recited that it was

secured by several parcels of real property: approximately nine acres of land for Three

Rivers’ shop in Vicksburg, Jones’s home in Vicksburg,3 and two acres in West, Mississippi,

as well as a 2008 life insurance policy for $200,000. The notes specify that the lender is not

       3
       The only deeds of trust in the record are those executed in 2000 by Three Rivers on
approximately nine acres of land and by the Joneses on the mobile home and lot.

                                              3
required to rely on this security “but may proceed directly against the Borrower.”

¶6.    Importantly, while the 2008 promissory notes were again executed by Jones and

Pinkston, the signature block was different from the 2005 notes. On these later notes, Jones

signed under the typed name “Three Rivers” without any indication of agency status, but

also without any indication of individual liability. Pinkston signed the notes as a partner and

guarantor.4 The notes state:

       No renewal or extension of this Note, delay in enforcing any right of the
       Lender under this Note, or assignment by Lender of this Note shall affect the
       liability or obligations of the Borrower. All rights of the Lender under this
       Note are cumulative and may be exercised concurrently or consecutively at the
       Lender’s option.

¶7.    In May 2012, while driving for the company, Jones was tragically killed in a motor-

vehicle accident. His estate was opened in the Warren County Chancery Court. The first

publication for creditors was issued on March 6, 2013. Delta timely filed two probated

claims of $88,740.05 and $116,228.17 respectively for each loan. The Estate objected to

both probated claims, arguing the indebtedness belonged to Three Rivers, not Jones

individually, due to the fact that Jones had not signed the 2008 notes in an individual

capacity.

¶8.    In March 2015, a hearing was held on the claims, where counsel for Delta claimed

she had attached only the 2008 notes and loan-payoff schedule to the claims and

inadvertently failed to attach the notes signed in Jones’s individual capacity. The chancellor

       4
        Attached to the copies of the 2008 promissory notes submitted into evidence by the
Estate was a “Final Checklist for General Promissory Note” listing the Borrower as Three
Rivers. One of the items on the list stated: “The Promissory Note is co-signed by a third
party. Therefore, Lee Pinkston must also sign the Note.”

                                              4
continued the hearing, and Delta filed a motion to amend its probated claims in order to

attach the individual notes. In its motion, Delta stated the indebtedness was incurred by

Three Rivers, Jones individually, and Pinkston individually, and the intended purpose of the

notes was for Three Rivers and Jones to be responsible for the debt. Delta argued that

nothing had changed in its probated claims;5 the additional promissory notes would be

merely “additional documentation of the claim,” as required by statute, that “simply

perfect[ed] the claim as filed.” The chancery court granted the motion.

¶9.    Accordingly, in June 2015, Delta filed the amended probated claims, but again

attached the same 2008 notes and payoff schedule that had been originally offered. Delta

then filed an “Amended Motion to Amend Probate Claim,” finally attaching the 2005 notes.

Delta attached the same Loan Payoff sheet as it had for the 2008 notes, again calculating the

debt pursuant to a seven-percent interest rate. The Estate renewed its objection, arguing that

Delta’s inadvertent omission of the 2005 promissory notes executed by Jones in his

individual capacity was irrelevant because the 2005 notes were “superseded and nullified”

by the execution of the 2008 notes as a matter of law, and Jones was no longer responsible

for the debt. The Estate claimed the 2008 notes constituted a “novation” which extinguished



       5
           Delta reported:

       The documentation attached to the original probated claims was the
       promissory notes executed by George Jones on behalf of Three Rivers Transit.
       Counsel inadvertently left out the promissory notes executed by George Jones
       in his official [sic] capacity. The terms of the promissory notes executed by
       Three Rivers Transit and George Jones, individually, were identical and [the]
       intended purpose was for the Corporation to be responsible as well as George
       Jones individually.

                                              5
the 2005 notes. The Estate cited several cases to the effect that “the execution of a renewal

note with full knowledge of the facts constituting a defense to the original note waives that

defense as to the renewal,” and the debtor “becomes obligated to pay the new note.” See,

e.g., Citizens Nat’l Bank v. Waltman, 344 So. 2d 725, 728 (Miss. 1977) (citing Gay v. First

Nat’l Bank, 172 Miss. 681, 686, 160 So. 904, 905 (1935)).

¶10.   In reply, Delta argued the inapplicability of the Estate’s cases because Delta was not

asserting a defense, but rather a cause of action to enforce Jones’s promise to pay the debts.

Additionally, Delta denied the execution of the 2008 notes constituted a novation, citing

Greenwood Leflore Hospital Commission v. Turner, 213 Miss. 200, 206, 56 So. 2d 49, 497

(1952), in support of the proposition that a novation requires the addition of a new party.

Secondly, Delta argued that the parties did not intend a novation, and the creditor did not

assent to it, as required in First American National Bank of Iuka v. Alcorn Inc., 361 So. 2d

481, 487 (Miss. 1978), Mississippi Motor Finance Inc. v. Enis, 254 Miss. 625, 628-29, 181

So. 2d 903, 904-05 (1966), and Morgan v. Jackson-Mix Concrete, 247 Miss. 863, 886, 157

So. 2d 772, 780 (1963). Delta also argued that while assent to a novation can be express or

implied, here there was no express assent and no evidence of an implied assent. See Amer.

Blakeslee Mfg. Co. v. Martin, 128 Miss. 302, 91 So. 6 (1922). Finally, Delta claimed that

if a novation was intended upon execution of the 2008 notes, the collateral pledges and the

lien against the Joneses would have been released.

¶11.   The chancellor entered a final judgment allowing Delta to amend its probated claim

and attach the 2005 notes. She quoted from two cases – First American National Bank, 361



                                              6
So. 2d at 487-88: “A novation involving substitution of debtors is a contract that discharges

at once an existing obligation and creates a new contractual obligation by including as the

new obligor a party who was not previously obligated”; and Harris v. Tom Griffith Water

Well & Conductor Service Inc., 26 So. 3d 338, 341 (¶¶10-11) (Miss. 2010):

       A novation may occur where the debt remains the same, but a new debtor is
       substituted. In such event, the original debtor is acquitted, his obligation is
       extinguished, and the creditor contents himself with the obligation of the
       second debtor. Miss. Ins. Guar. Ass’n v. MS Cas. Ins. Co., 947 So. 2d 865,
       871 (Miss. 2006) (quoting Greenwood Leflore Hosp. Comm’n v. Turner, 213
       Miss. 200, 56 So. 2d 496, 497 (1952)). See also First Am. Nat’l Bank of Iuka
       v. Alcorn, Inc., 361 So. 2d 481, 487 (Miss. 1978) (citing Miss. Motor Fin.,
       Inc. v. Enis, 254 Miss. 625, 181 So. 2d 903 (1966)). The Restatement of
       Contracts defines novation as a contract that (a) discharges immediately a
       previous contractual duty or a duty to make compensation, and (b) creates a
       new contractual duty, and (c) includes as a party one who neither owed the
       previous duty nor was entitled to its performance. Restatement (First) of
       Contracts § 424 (1932). In other words, a novation involves a substituted
       contract.

(Internal quotation marks omitted).

                               STANDARD OF REVIEW

¶12.   This case presents questions of fact and law. For questions of fact, “[w]e will not

disturb the findings of a chancellor when supported by substantial evidence unless the

chancellor abused [her] discretion, applied an erroneous legal standard, was manifestly

wrong, or was clearly erroneous.” Harris, 26 So. 3d at 340 (¶7). “Questions of law are

reviewed de novo.” Id.

                                       ANALYSIS

       I.     Effect of 2008 Notes on 2005 Notes

¶13.   In this case, the chancellor made no findings of fact and appears to have determined,

                                             7
as a matter of law, that the 2008 notes could not constitute novations as no new debtor was

substituted. Relying upon Ainsworth v. Lee, 218 Miss. 813, 67 So. 2d 905 (1953), we find

this proposition to be an incorrect statement of Mississippi law.

¶14.   The Mississippi Supreme Court, in Ainsworth, explained:

       There are three kinds of novation: (1) where the debtor and creditor remain
       the same, but a new debt takes the place of the old one; (2) where the debt
       remains the same but a new debtor is substituted; and (3) where the debt and
       debtor remain, but a new creditor is substituted. Adams v. Power, 48 Miss.
       450.[6] In Greenwood Leflore Hospital Comm. v. Turner, 213 Miss. 200, 56
       So. 2d 496, 497, this rule was deduced: “A novation may occur where the
       debt remains the same, but a new debtor is substituted. In such event, the
       original debtor is acquitted, his obligation is extinguished, and the creditor
       contents himself with the obligation of the second debtor.” In 39 Am. Jur., p.
       255, Sec. 2, is found this definition of notation: “A novation, then, as
       understood in modern law, is generally defined as a mutual agreement among
       all parties concerned for the discharge of a valid existing obligation by the
       substitution of a new valid obligation on the part of the debtor or another, or
       a like agreement for the discharge of a debtor to his creditor by a substitution
       of a new creditor.”

Id. at 817-18, 67 So. 2d at 907.

¶15.   In Ainsworth, the ultimate question was whether a mortgage lien of Burnham

Ainsworth was superior, or subject to, the title of D.H. Lee in certain real property. A deed

of trust conveying the property was executed by Willie Jones and G.G. Gregory to secure

a debt owed to Ainsworth. Id. at 815, 67 So. 2d at 906. Jones and Gregory subsequently

sold Lee a one-third interest in the lot and automobile business thereon. The deed provided

that Lee would be liable for one-third of the indebtednesses of the business. Gregory then



       6
         In Adams v. Power, 48 Miss. 450, 454 (1873), the supreme court discussed the “well
settled principles of law” regarding novation, including its history in civil law with three
types of novation, and its similarity to the common-law doctrine.

                                              8
sold his one-third interest in the business to Jones and requested that Ainsworth satisfy the

deed of trust, release Gregory, and take a new deed of trust from Jones. Id. at 816, 67 So.

2d at 906. Ainsworth satisfied and cancelled Jones and Gregory’s original deed of trust, and

Jones alone executed a new deed of trust to secure the balance of the original debt owed to

Ainsworth. Jones never paid the debt; so the trustee foreclosed against Lee and Jones under

the original deed of trust executed by Jones and Gregory, and later renewed by Jones. Id.

at 817, 67 So. 2d at 906. Lee argued that the new debt-arrangement between Ainsworth and

Jones was a novation of the old obligation, and the trial court dismissed the suit. Id. at 817,

67 So. 2d at 907. The supreme court affirmed, explaining that Ainsworth surrendered the

old notes signed by Gregory and Jones, accepted the new notes and deed of trust signed by

Jones alone, and satisfied the old deed of trust of record. Lee’s one-third interest in the lot

was superior to the mortgage lien of Ainsworth. Gregory was relieved of any personal

responsibility for the debt. Id. at 818-19, 67 So. 2d at 907. While these facts do not mirror

those before us exactly, they do verify that a novation does not require the addition of a new

party. As in our case, the new notes were executed by fewer than all the original signatories.

¶16.   This area of the law has become confused, however, by two circumstances. First,

there are cases which cite part of the doctrine of novation but which have been inferred by

some, including Delta, to contain the entire doctrine. For example, Delta quotes Greenwood

LeFlore Hospital: “A novation may occur where the debt remains the same, but a new

debtor is substituted.” Greenwood Leflore Hosp., 213 Miss. at 206, 56 So. 2d at 497. Delta

argues that this quote defines novation. However, Greenwood Leflore Hospital does not



                                              9
state that this is the only way a novation “may occur,” and in fact cites Adams for its

authority.7 The supreme court in Ainsworth quoted this exact statement immediately

following its recognition of the “three kinds of novation.” See supra. Obviously, then,

substitution of parties is not the only type of novation recognized in Mississippi.8

¶17.   Further confusion is caused by the Restatement of Contracts’ utilization of the term

“novation” only to refer to one type of subsequent or substituted contract. The Second

Restatement defines novation as a “substituted contract that includes as a party one who was

neither the obligor nor the obligee of the original duty.” Restatement (Second) of Contracts

§ 280 (1981) (emphasis added). A “substituted contract,” in turn, is one “that is itself

accepted by the obligee in satisfaction of the original duty and thereby discharges it.” Id. at

§ 279 cmt. While the First Restatement did not refer to a novation as a type of “substituted


       7
        As previously noted, Adams is the earliest case in Mississippi discussing the “three
types of novation.” See supra. Greenwood Leflore Hospital states:

       In Adams v. Power, 48 Miss. 450, it was recognized that a novation may occur
       where the debt remains the same, but a new debtor is substituted. In such
       event, the original debtor is acquitted, his obligation is extinguished, and the
       creditor contents himself with the obligation of the second debtor.

Greenwood Leflore Hosp., 213 Miss. at 206, 56 So. 2d at 497.
       8
         Similarly, in some cases the supreme court has stated: “A novation involving
substitution of debtors is a contract that (a) discharges immediately an existing contractual
obligation, (b) creates a new contractual obligation by, (c) including as the new obligor a
party who was not previously obligated.” See Miss. Motor Fin. Inc. v. Enis, 254 Miss. 625,
628, 181 So. 2d 903, 904 (1966) (citing Greenwood Leflore Hosp., 213 Miss. at 200, 56 So.
2d at 496); 39 Am. Jur. Novation § 2 at 254-55 (1942); Restatement (First) of Contracts
§ 424 (1932)); see also First Am. Nat’l Bank, 361 So. 2d at 487-88 (citing Enis, 254 Miss.
at 628, 181 So. 2d at 904 (1966)). Again, while these cases describe a novation “involving
substitution of debtors,” they do not say that this is the only type of novation recognized in
Mississippi.

                                              10
contract,” its definition9 is contained in the chapter entitled “Discharge of Contracts.” The

manners of discharge included not only novations, but also rescissions and accords,

including “An Accord Itself as Satisfaction”: “A subsequent contract may itself be accepted

as immediate satisfaction and discharge of a pre-existing contractual duty, or duty to make

compensation; and if so accepted the pre-existing duty is discharged and is not revived by

the debtor’s breach of the subsequent contract.” Restatement (First) of Contracts § 418

(1932).10

¶18.   The Maryland Court of Appeals’ opinion Leisner v. Finnerty contains the most

thorough discussion of the comparison between the Restatement and common-law

definitions of novation we have been able to locate:

       Although the Restatement, Contracts, Section 424, would require that a new
       party be introduced into the existing agreement in order for a “novation” to
       occur, the decisions in this State and many other jurisdictions have made no
       such distinction or requirement[.] Although the position taken by the
       Restatement may be the more proper one from a puristic standpoint, we find
       that in Maryland and elsewhere the terms “novation,” “merger,” “accord” and
       “substituted contract” have at times been used interchangeably. We think this
       Court both recognized and answered this problem in semantics when Chief
       Judge Brune for the Court in Hudson v. Md. State Housing Co., 207 Md. 320,


       9
           The First Restatement of Contracts states:

       A novation within the meaning of the Restatement of this Subject is a contract
       that (a) discharges immediately a previous contractual duty or a duty to make
       compensation, and (b) creates a new contractual duty, and (c) includes as a
       party one who neither owed the previous duty nor was entitled to its
       performance.

Restatement (First) of Contracts § 424 (1932) (emphasis added).
       10
         Neither this type of accord or the “substituted contract” of the Second Restatement
require the addition of a third party.

                                              11
       114 A.2d 421 (1955), with his usual perspicuity stated:

              In current legal terminology some authorities apply the term
              ‘merger’ or ‘substituted contract’ rather than ‘novation’ to the
              substitution of a new agreement for an old one between the
              same parties, and reserve the term ‘novation’ for a new
              agreement in which one or more new parties are introduced.
              Restatement, Contracts, Sections 424, 443; Williston, Contracts,
              Rev. Ed., Section 1865. The latter points out, however, that the
              term ‘novation’ is not uncommonly applied in the common law,
              as well as in the civil law, to a substituted contract between the
              same parties. In this State the term ‘novation’ has been applied
              to a new contract between the parties as well as to a new
              contract involving one or more new parties.

Leisner v. Finnerty, 250 A.2d 641, 643-44 (Md. 1969).

¶19.   We find Adams and Ainsworth clearly follow civil and common-law definitions of

“novation” rather than the Restatement view. However, in Harris, quoted by the trial court,

supra, the supreme court cites Greenwood Leflore Hospital, the First Restatement of

Contracts, and the “substituted contract” concepts from the Second Restatement.

¶20.   The question is whether the Harris court intended to overrule Ainsworth or the “well

settled principles of law” identified by Adams without comment or explanation. We think

not.11 At most, we believe Harris may signify a change from the common law to

Restatement terminology. As noted previously, both the First and Second Restatements

recognize subsequent or substituted contracts, which do not require additional parties; the

Restatements just do not refer to them as “novations.” Therefore, as Ainsworth is on point

and not overruled by the Mississippi Supreme Court, we determine that the 2008 notes might

       11
         Most recently, the United States District Court for the Southern District of
Mississippi cited Ainsworth’s three types of novation under Mississippi law. U.S. Bank
Nat’l Assoc. v. State Bank & Trust Co., 45 F. Supp. 3d 582, 588 (S.D. Miss. 2014).

                                             12
constitute novations without the addition of a new party.

¶21.   The burden of proof rests on the party asserting a novation to establish it. Morgan

v. Jackson Ready-Mix Concrete, 247 Miss. 863, 886, 157 So. 2d 772, 780 (1963) (citing 66

C.J.S. Novation § 26). Whether a novation was established depends “on whether the parties

intended to extinguish the old obligation by substituting the new one,” which is a question

for the finder of fact. Id. (citing 61 A.L.R. 2d 755, 759 (1958); 66 C.J.S. Novation § 27).

¶22.   In the instant case, the trial court did not make any findings of fact as to whether the

parties intended to extinguish the 2005 notes by execution of the 2008 notes. A number of

factors may be considered in determining intent. See generally Annotation, Renewal Note

as Discharging Original Obligation or Indebtedness, 52 A.L.R. 1416 (1928) (collecting

cases). Delta argues that had the parties intended to extinguish the 2005 notes, the deeds of

trust executed by Jones and his wife would have been satisfied of record. This argument

does have some support in law. In Adams, the supreme court stated: “An important rule of

novation is, that the extinction of the debt destroys also all rights and liens appertaining

thereto. Hence, if any hypothecations be attached to the old contract, they will be canceled

by the new one, unless express words retain them.” Adams, 48 Miss. at 456. In this case,

however, the deeds of trust were executed in 2000, at a time when Jones does not appear to

have any personal liability on the notes. Therefore, personal liability and the pledge of

security do not go hand-in-hand. Further, Jones’s deeds of trust secure future advances to

Three Rivers. Accordingly, Jones’s property stands as security for liabilities incurred by

Three Rivers both before and after execution of the 2005 notes upon which Jones was



                                             13
personally liable. This point is, therefore, not determinative of whether the parties intended

a novation.

¶23.   Delta further argues that there is no evidence indicating the parties intended a

novation to occur. At the hearing, the Estate, however, introduced a general promissory note

“checklist” – “Final Checklist for General Promissory Note” – identifying who was to sign

the documents and actions to be taken to “make [the note] legal.” The checklist stated:

“The Promissory Note is co-signed by a third party. Therefore, Lee Pinkston must also sign

the Note.” Delta objected to the admission of this document because there had been no

testimony as to who prepared it. The chancellor stated that the document had already been

admitted, but she would “not determine who actually made that preparation unless you have

adequate to testimony to present or evidence to present in that regard.” The Estate argued

that even if Jones created the checklist (which it argued he did not), it would still express the

intention that Jones was not intended to sign the 2008 notes.

¶24.   Here, the issue is not whether it was intended Jones would not execute the new notes,

but whether the execution of those notes was intended to extinguish the 2005 obligation.

We agree with the Estate that the checklist, regardless of who created it, could indicate an

intent not to continue Jones’s obligation. If Delta intended for the 2005 notes to continue,

why would it need the personal guaranty of one but not the other 2005 guarantor? Given

the limited record and arguably conflicting evidence, we cannot determine as a matter of law

that there was no evidence of intent. Accordingly, we reverse and remand for the chancery

court to determine whether the execution of the 2008 notes was intended to extinguish the



                                               14
2005 notes.

       II.    Waiver

¶25.   The Estate argues that Delta waived all claims against Jones individually when Delta

accepted the 2008 renewal notes without Jones’s signature in an individual capacity. In

response, Delta mistakenly claims that the defense of waiver was not presented before the

chancery court, and is thus waived on appeal. However, the defense of waiver was brought

up in the Estate’s objection to the motion to amend the probated claims, the related

memorandum of law, and the hearing on the motion. We are not persuaded, however, by

the Estate’s argument that the execution of the 2008 renewal notes extinguished the 2005

notes, and Delta thereby waived its rights to any defenses or claims under the 2005 notes.

¶26.   As Delta points out, its probated claims were not asserting a defense of waiver on the

notes, but rather a cause of action for payment by the Estate. To support its argument, the

Estate cites cases on the defense of waiver: Gay v. First Nat’l Bank, 172 Miss. 681, 160 So.

904 (1935) and Austin Dev. Co. v. Bank of Meridian, 569 So. 2d 1209 (Miss. 1990).

However, both cases are distinguishable. Gay stands for the proposition that when a debtor

executes a renewal note, the defenses of the original note are waived, and the debtor must

pay the renewal note. Gay, 172 Miss. at 686, 160 So. at 905. In Austin, which cites Gay,

a company renewed its loan with a bank several times because it could not pay its initial

loan. Austin, 569 So. 2d at 1210-11. The bank subsequently sued on the debt, and was

granted summary judgment. Id. at 1211. The Mississippi Supreme Court affirmed, holding

that the debtor/company waived any defense or cause of action against the bank, which had



                                             15
failed to timely call upon a letter of credit which was collateral for the debtor’s loan, because

the debtor/company executed renewal notes and paid interest on the notes. Id. at 1213.

¶27.   Here, Delta is not arguing that the Estate waived a defense regarding the notes; the

Estate is arguing that Delta, by accepting the new notes, waived its right to pursue claims

on the original notes. We believe that the issue is one of novation, as discussed in issue one,

rather than of waiver.

       III.   Addition of 2005 Promissory Notes to Delta’s Probated Claims

¶28.   The Estate argues that the chancellor erred in allowing Delta to “substitute”12 the

2005 notes for the 2008 notes. Further, the Estate claims that the amendment was untimely

as it was submitted over three years after the time allowed, thereby violating Mississippi

Code Annotated sections 91-7-149 and 91-7-151 (Rev. 2013).

¶29.   Section 91-7-149 explains the procedure for probating claims and requires that

written evidence of the probated claim against a decedent’s estate be submitted to the clerk,

including an affidavit stating:

       the claim is just, correct, and owing from the deceased; that it is not usurious;
       that neither the affiant nor any other person has received payment in whole or
       in part thereof, except such as is credited thereon, if any; and that security has
       not been received therefor except as stated, if any.

Section 91-7-151 explains the ninety-day time limit and amendment procedures for probated

claims. Also, a claim may be amended after the ninety-day period has expired through

       12
         On appeal, the Estate contends Delta was “substituting” the 2005 notes for the 2008
notes; however, in its motions to amend, Delta does not request “substitution” but the
addition of the 2005 promissory notes to “simply perfect the claim as filed.” The Estate’s
word choice in the first issue relates to the second issue it raises regarding novation, or
substitution, of the probated claims.

                                               16
approval of the court, as the Mississippi Supreme Court explained in Central Optical

Merchandising Co. v. Lowe, 249 Miss. 61, 160 So. 2d 673 (1964):

       [A] seasonably filed claim against the estate of a decedent may be amended
       after the expiration of the time limited for the filing of claims where it is
       necessary or desirable to accomplish complete justice between the parties, the
       original statement shows a claim (or cause of action) which may be
       established as a valid one, upon which an amendment can be predicated, the
       character and identity of the claim (or cause of action) is not changed,
       unrelated increases in the sum claimed are not included, and the proposal is
       not contrary to the provisions of the probate statute, as construed, but rather
       in harmony with applicable curative or jeofails statutes permitting
       amendments to pleadings, etc., in proper civil cases.

Id. at 75-76, 160 So. 2d at 679-80 (emphasis added) (quoting H.D. Warren, Annotation,

Amendment of Claim Against Decedent’s Estate After Expiration of Time for Filing Claims,

56 A.L.R. 2d 627 § 2(a), at 628 (1957)).

¶30.   The Estate argues that with Delta’s amendment, the 2008 notes were substituted by

the 2005 notes and thus materially changed the identity of the claims. The Estate contends

the borrowers for the 2005 notes were Three Rivers, Jones, and Pinkston, while the borrower

for the 2008 notes was only Three Rivers, with Pinkston as guarantor, because Jones did not

sign the notes in an individual capacity. Because of these differences, the Estate claims the

amendment, filed after the ninety-day probate deadline, was untimely and thus improper.

We disagree.

¶31.   Here, Delta received the Estate’s notice to creditors on March 1, 2013. Delta filed

two separate claims against the Estate for indebtedness on April 11, 2013, within the ninety-

day deadline. Nearly two years later, on December 18, 2014, the Estate objected to the

probated claims. Delta filed its motion to amend the claims in June 2015 and then its

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amended motion to amend the claims on November 30, 2015. In both of the motions, Delta

stated the probated claims were a result of indebtedness incurred by Three Rivers, Jones

individually, and Pinkston individually. Delta maintained that the probated claims’ identity

did not materially change except for the addition of the 2005 notes, which was merely an

“additional documentation of the claims.”

¶32.   In Central Optical, the Mississippi Supreme Court found that “substantial compliance

is sufficient” in statutes relating to claims against decedents’ estates. Id. at 71, 160 So. 2d

at 677. “Where the amendment increases the amount of the claim, sets up a new cause of

action, and materially changes the basis for the claim, it is not allowable” past the statutory

time limits. Id. at 75, 160 So. 2d at 679 (citing 34 C.J.S. Executors and Administrators

§ 417). However, an amendment is allowable if it “does not amount to a new claim, but is

merely an improvement or perfection of one presented in time but lacking certain elements

necessary to express its full merits.” Id.

¶33.   Here, the trial court did not abuse its discretion in allowing the amendment. No

additional funds were borrowed in 2008, and the due date was merely extended to allow

more time to pay off the loans. While the interest rate was lower under the 2005 notes, we

do not find, as a matter of law, that the change in interest rate materially altered the character

or identity of the claim. Accordingly, the amendment was allowable outside of the statutory

ninety-day time limitation under Central Optical.

¶34.   As discussed in issue one, the chancery court must, however, determine on remand

whether the 2005 notes were extinguished by novation.



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¶35.   AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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