Brasher v. Lyle

13 Ala. 524 | Ala. | 1848

COLLIER, C. J.

The act of 1843, to “ amend the laws now in force in relation to insolvent estates,” requires that claims shall be filed against insolvent estates, in the clerk’s office of the orphans’ court, within six months after the same is declared insolvent; and that such claim shall be verified by the affidavit of the claimant: Further, within nine months after an estate is declared insolvent, the administrator or any creditor may object to any claim filed against the estate — an issue shall be made up and tried, and the unsuccessful party shall pay all costs. Clay’s Dig. 194, § 10, 11. Under this statute, it has been held that it is not necessary an affidavit should be made at the time the claim is filed; that the administrator or creditors have the right to the oath of the claimant to the justice of the claim ; and if an exception is taken for the want of an affidavit, the affidavit may be supplied any time before the estate is set for final settlement by the statute. 10 Ala. Rep. 520, 564.

The affidavit required, is not intended to establish a disputed account, but to prevent a simulated or satisfied claim from being set up against the estate to the prejudice of bona fide creditors. And no matter what may be its apparent dignity, the justice of the claim must be verified — even if it be evidenced by a promissory note or a judgment. •

The objections to the claims were sufficiently broad to throw upon the creditor the onus of making out the correctness of his account as a charge upon the intestate’s estate. This could not be done by the evidence of the parties interested, as the account was for a larger amount than they could establish by their own oath, and is expressly excepted ■from the influence of the act of 1839, which under certain circumstances admits the oath of the plaintiff, where a suit is commenced upon an account not exceeding $100. Clay’s Dig. 342, § 161. The affidavit, then, should have been received as a mere compliance with the act of 1843, and not to establish the account. In giving to it such an effect, the orphans’ court erred — its judgment is consequently reversed, and the cause remanded.