delivered the opinion of the court.
(After stating the facts as above). This record presents a rather unique contest. Counsel do not direct our attention to any adjudicated case of our own court exactly similar. It is argued by counsel for appellants that the paid or canceled note here probated is not the written evidence of Mrs. C. Gr. Wells’ claim, if any she has, and that therefore the probate is defective and not within the terms of our statute; section 2106 of the Code directing how claims shall be probated. It is contended that the canceled note is not the “written evidence,” and that the claimant filed no itemized account or statement of the claim in writing signed by her, as required by the statute. What constitutes the written evidence of a claim was discussed by this court in Lehman v. Powe, 95 Miss. 446, 49 So. 622. In that case certain canceled checks were attempted to be probated as the written evidence of the claim. Judge Smith, in speaking for the court, said:
“The words ‘written evidence,’ as used in the statute, clearly mean such a writing as by its terms or on its face evidences the fact that a liability exists on the part of the estate in favor of the claimant.”
*409In another part of the opinion it is said:
“These canceled checks disclose no liability at all on the part of the estate to any one. . . . They conld have been used, it is true, as evidence in a suit for money loaned, if in fact they related to snch a transaction, bnt only as one link in the evidence necessary to maintain such a suit.”
In the instan't case the promissory note evidenced the joint and several obligation of Mr. and Mrs. Wells to Scott Hardin. The note upon its face discloses at best an obligation that presumably should be paid by the makers, jointly: that is to say, one-half by Mrs. Wells and one-half by J. C. Wells. When Mrs. Wells then paid the note in full, as evidenced by the receipt on the back of the note, the entire document as then canceled, without evidence to the contrary, indicated that she had paid the full amount of the joint undertaking and, to the extent of one-half, had paid the debt of her husband. In making this payment Mrs. Wells was privileged to have the note transferred to her by Scott Hardin, the holder thereof. If the note had been transferred or assigned to Mrs. Wells, she could, so far as the face of the paper discloses, have maintained an action against her husband for his portion of the obligation. Instead of taking a written assignment she elects to have Scott Hardin execute a receipt in full on the back of the document itself, and we think, therefore, that when she presented the canceled note for probate the writing should, in equity, be regarded as evidencing on its face claim for one-half of the payment, but no more. So far as the writing itself indicated, Mrs. Wells, as to one-half, simply paid her .own obligation. As to the other half it evidenced the fact that she had paid the obligation of her husband, and this under circumstances over which she did not have full control. As a comaker she could have been compelled to pay the full amount of the note. Without compulsion she elected to pay the full amount and then to demand reimbursement from her comaker. So much for one-half of ,the claim as evidenced by the writing itself.
*410But it was the theory of the claimant that her husband had given her the land which he purchased to reimburse her for moneys which constituted her separate estate and which her husband had appropriated. The rents which the witness Hollis says Mr. Wells received from the lands of his wife could not, under section 2520 of the Code, be recovered, and the representatives of Mr. Wells in this proceeding could not he made to account for these rents. The evidence shows that these rents were collected some years prior to the death of Mr. Wells. The evidence is insufficient to show that Mr. Wells in fact sold any lands of his wife and appropriated the proceeds. At best the evidence shows an intention to place the title of the land purchased in Mrs. Wells and the further possible intention of Mr. Wells himself to pay-the full amount of the note in question. He succeeded in having the title fully placed in his wife, but his expressed intention of paying the note was never in fact executed, and for all the court knows Mr. Wells might have changed his opinion or purpose to pay the note. In fact the only admission shown to have, been made by Mr. Wells was a declaration that he intended to sell some young stock and from this source to pay the note. It is not shown that he intended to pay the note absolutely regardless of whether he consummated the sale of his young stock. There is no evidence that he sold the stock referred to, or that he attempted to execute his declared purpose. If he intended to give his wife the proceeds of this note, he never in fact completed the gift, and there is no evidence sufficient to characterize Mrs. Wells as a mere surety on the note. On the contrary, the deed for which the note was given was made to her, her signature comes first upon the note, and the transaction as a. whole comes nearer placing her as principal than as surety. At the same time there is no evidence that sufficiently places J. C. Wells as a mere surety on the note. It seems clear to us that he intended to execute the note as a comaker and to become obligated with his wife for the full amount. As stated, the parties *411are joint and several debtors. The testimony of Mrs. Wells was incompetent.
We conclude that as to one-half of the amount of this paid note, the canceled note itself, with the receipt indorsed on the back thereof, is the written evidence of that much of her claim, and to that extent is a sufficient compliance with the statute; that under" the facts it was not error to allow this one-half, but the allowance of the full amount was erroneous; that the one-half' representing the primary obligation of Mrs. Wells could not be probated by simply filing the canceled note, but a demand for this additional one-half would-necessitate an inquiry into facts, and therefore, as to this demand, there should have been a statement of the claim in writing signed by the creditor. We are further of the opinion that under the proof the claim should be reduced one-half. The decree of the lower court will be reversed, and the cause remanded, with directions to reduce the amount of the probated claim one-half.
Reversed and remanded.