I concur in the result of this decision with grave doubts as to its correctness; and but for the decisions of this court in Gordon v. McDougall, 84 Miss. 715, 37 So. 298, 5 L.R.A. (N.S.) 355, and Abbay v. Hill, 64 Miss. 340, 1 So. 484, would not consent to this holding. But the result of the decisions by virtue of the re-enactment of two Codes by the Legislature binds us to the construction placed in these decisions of the court by our predecessors. I doubt if these decisions carry us to the limit now placed on the statute and the dispensing with probations by creating a trust. It seems to me that the executor should present the will for probate and file an inventory and give notice to creditors to probate their claims, and then when the will gave the power could proceed until the time for closing the estate and should then file his final account so as to have a record. If the will expressly names the debts, or the creditors and the amount of their claims and directs their payment from his estate or specified property set aside for that purpose, he may do so and it will be the creation of a trust as held in Rainey v. Rainey, 124 Miss. 780, 87 So. 128, and O'Reilly v. McGuiggan,91 Miss. 498, 44 So. 986, 15 Ann. Cas. 623. But when no debts are mentioned, and no property is set aside by the will to pay debts, it seems to me that no trust is created.
The purpose of having claims probated is not only for the information of the court in administering the estate, but is for the information of creditors, heirs, devisees, and legatees and all others having an interest in the estate. Where the debts are not named in a will or their character indicated, there should be no payment without having their character established in probation proceedings. Every creditor, heir, legatee, or devisee is entitled to have them filed in the court so they may contest them and have full opportunity to do so. There should be no further dispensing with probation than is already provided *Page 376 in our decisions. I therefore write to have it understood that this case is not to extend the doctrines heretofore announced by this court.