35 Ala. 551 | Ala. | 1860
We have heretofore held, that if a claim against an insolvent estate is not filed, verified, within the time prescribed by law, such claim may be rejected by the court, although the claim had not been made the sub
In the present case, the claim was filed in time, and, when filed, it was accompanied by what is here claimed as a verification. In form, the affidavits seem unobjectionable. The claim ivas rejected, as we gather from the record, because the affidavits, though made after the death of the intestate, were in fact made before the declaration of insolvency. It now becomes our duty to determine, whether a verification thus made is sufficient under the statute.
We have given this subject careful and full consideration, and hold, that when the verification is filed with the claim, and the only .objection is, that the affidavit, though made after the death of the intestate, Avas yet made before the estate Avas declared insolvent, such verification is a compliance with section 1847 of the Code. The reasons which lead us to this conclusion are the following:
1st. The statute is silent, when the verification shall take place. Its language is, “verified by the oath of the claimant, or some other person who knoAvs the correctness of the claim, and that the same is due.” In Lay v. Clark, (31 Ala. 409,) Ave construed the word verified, as found in this section. There is nothing in the opinion pronounced in that case, Avhich requires us to hold this verification .bad.
2d. If it be urged that the verification in this case, dating as it does before the.deelaration of insolvency, Avas nothing more than an extra-judicial oath, Ave ansAver— first, that we do not deem it necessary to announce any opinion on this question in the present case ; second, if this be conceded, then this case, for all penal purposes, Avill stand in precisely the same predicament as claims verified beyond the limits of the State of Alabama, under sections 1849 and 1850 of the Code. On such foreign verification there could be no indictment for perjury.
3d. The claim being verified after the death of testator or intestate, if the representative of the estate have paid the claim betAveen the time of the verification and
4th. ¥e adopt this principle the more readily, because we are satisfied that we thereby'approve a practice which has obtained largely with the profession; and the opposite construction could not fail to work much individual oppression.
The decree of the probate court is reversed, and the cause remanded.
