275 S.W. 200 | Tex. App. | 1925
"When a claim for money against an estate has been rejected by the executor or administrator, either in whole or in part, the owner of such claim may, within 90 days after such rejection, and not thereafter, bring a suit against the executor or administrator for the establishment thereof in any court having jurisdiction of the same."
It appeared from an exhibit, made a part of the plea in abatement, that at the time the claim was rejected July 10, 1922, it was not otherwise proven than by the affidavit of appellee that it was "true and correct [quoting] and all credits to which the same is entitled have been given." Appellee insists that such proof was not sufficient, and that appellant therefore was bound to reject the claim without respect to whether it was a meritorious one or not, and that, because appellant was so bound, his rejection of the claim at the time stated did not have the effect claimed for it.
We think appellee's contention must be sustained. By the terms of the statute (article 3439, Vernon's Statutes) appellant was without power to allow the claim unless it was "accompanied [quoting] by an affidavit in writing that the claim is just and that all legal offsets, payments and credits known to affiant have been allowed." In Walters v. Prestidge,
After the witness Evans had testified that he had conversations with Herman Parsons, the first probably about 1912, with reference to appellee's paying the premiums, it appears from a bill of exceptions that he was permitted to testify further, over appellant's objection, as follows:
"The substance of it [the conversation with Herman Parsons] was that, if Fannie Parsons would pay the premiums on that policy she could be protected in the policy and have her money out when the policy was collected; all the premiums as she paid that she would have first lien on the policy for what she had paid in and I instructed them how, in order to protect her, it should be done; that it was necessary for that policy to be indorsed to her as her interest might appear."
The ground of the objection was that the testimony tended to prove a contract within the statute of frauds, in that it was not in writing and was "not to be performed within the space of one year" from the time it was made. Article 3965, subd. 5, Vernon's Statutes.
It is not very clear, from the way the matter is presented in appellant's brief, whether his contention here that the court erred in overruling his objection is on the theory that the testimony tended to show that the contract was entered into more than a year prior to the time any premiums would become due and payable on the policy, or on the theory that it tended to show that more than a year must necessarily elapse before any other than one premium could become due on the policy. But we think there was no merit in the objection on either theory. It appeared from other testimony before the court that a premium on the policy became due and payable April 12, 1913, and that one became due and payable thereon on the same day each year thereafter during the lifetime of the insured. The testimony of Evans was that the first of the conversations he referred to was "probably about 1912." If that testimony "tended" to prove that the contract between the parties was entered into more than a year before April 12, 1913, when the premium first paid by appellee became due, it certainly did not prove it, and we think it must, if believed, to render it inadmissable on the ground urged against it. Adair v. Stallings (Tex.Civ.App.)
As to the other theory, a rule applicable is that —
"An agreement which may or may not be performed within a year, is not required by the statute of frauds to be in writing; it must appear from the agreement itself that it is not to be performed within a year." Thouvenin v. Lea,
And other rules applicable are stated as follows in 27 C.J. 182:
"Oral agreements to continue to do some particular act until the happening of a certain contingency, such as the termination of a specified existing state of affairs, are valid if the contingency is one which may happen within the year, although it is possible that it may not happen within that time. An oral agreement to continue to do some particular act for an indefinite period of time is not within the statute, where it may be determined by such a change in the circumstances of the parties as will make it unreasonable or unnecessary that they should be further bound, the contingency of such change of circumstances being implied in the nature of the contract. Where an agreement is by its terms to continue during the lifetime of a specified person, or where no time is set for the completion of performance, and the contract is of such a personal nature that the death of the promisor would terminate it, the statute does not apply. In other words, a contract is not within the statute when a death occurring within a year will constitute a full performance."
Accordingly it has been held in this state that a verbal agreement by a railroad company "to issue" quoting the syllabus in Ry. Co. v. Wood,
Certainly in the instant case it cannot be said that the testimony objected to showed that the contract was not performable within a year from the time it was made, upon the contingency of the death of the insured before another premium than the one payable April 12, 1913, became due, or the contingency of appellee's death after she paid said premium due April 12, 1913, and before another premium became payable. If other authority than that cited above is needed as a support for the conclusion reached, it will be found in Taylor v Deseve,
Another contention by appellant is that a cause of action at once arose in *203
appellee's favor when and as she paid the annual premiums, and therefore that her right to recover on account of payments made by her more than two years before December 2, 1922, when she commenced her suit, was barred by the 2 years' statute of limitations. But the contract as found by the jury was that she was to be repaid the money she paid on account of the premiums "out of any money that might be realized on said policy." If that did not mean that she was to be paid when and not before the policy was collected, then the judgment involves a finding by the court to that effect, for as we construe the testimony it warranted such a finding. Article 1985, Vernon's Statutes. If that was the contract, then a cause of action in appellee's favor did not arise until appellant as administrator collected the amount due on the policy, and he did that within two years before the time the suit was commenced. Stacy v. Parker,
Appellant vigorously insists that there was no evidence of an agreement on the part of his intestate to pay interest on the sums paid by appellee on account of the policy, and that the judgment therefore is wrong so far as it awarded appellee a recovery of such interest. It is true there was no direct evidence of such an undertaking by the intestate, but we think the circumstances of the case as shown by testimony justified an inference that he so agreed, Ry. Co. v. Moss (Tex.Civ.App.)
Other contentions are presented in appellant's brief, but we think they also are without merit.
The judgment is affirmed.