273 S.W. 548 | Ky. Ct. App. | 1925
Affirming.
Appellant was defendant below, and seeks here to reverse a judgment which appellee, plaintiff below, recovered against her for $1,018.08 with interest from *676 January 1, 1921. Plaintiff claimed in its petition filed December 7, 1922, that in 1920 J.A. Bennett's estate sold to J.D. Walker, building material to the extent of $1,318.08, upon which Walker paid $300.00 July 31, 1920. Defendant filed her affidavit and moved to dismiss this petition because of plaintiff's failure to properly verify the claim, and to demand its payment before this suit was filed. On April 10, 1923, plaintiff made new and proper proof of the claim and demanded payment thereof, which defendant refused. On the next day plaintiff filed in the office of the clerk of the lower court, an amended petition, alleging this proper verification and demand. Defendant renewed her motion to dismiss. On June 13, the court overruled the motion to dismiss, but required plaintiff to pay all costs incurred to that date. This was properly done. Section 3870 of our statutes requires that claims against a decedent's estate be verified by the claimant. Section 3872 of the statutes forbids suit until claim is verified, and section 3884 denies to claimant any interest upon his claim unless he makes this verification and demand within one year after the personal representative qualifies.
On April 11 this claim had been verified, and its payment demanded as required by law. Plaintiff could then have abandoned his pending action and have begun a new one. He filed an amended petition in the pending suit, upon which process was issued, and on May 2 this was served on defendant. The only way in which this amendment could have in any way been any greater burden upon defendant than a new suit would have been, was there had been some costs incurred in the old suit. The court required plaintiff to pay that cost, hence defendant was in no manner prejudiced by that.
Defendant in her answer first denied the debt, then pleaded that the action was barred under section 2518 of the statutes, and in a concluding paragraph pleaded payment. The plaintiff's motion to require the defendant to elect upon which defense she would rely was overruled. The reply made up the issues. The evidence was heard by a jury under proper instructions, and upon its verdict the judgment appealed from was entered.
We have already disposed of the principal errors which defendant claims were made, but defendant says that incompetent evidence offered by the plaintiff was admitted by the court. This lumber was sold by one E.C. Bennett, who was allowed to testify about the sale. *677 The lumber was a part of the estate of J.A. Bennett. The bulk of the estate and this lumber business were by J.A. Bennett's will devised to E.R. Bennett. The only devise made to E.C. Bennett was $500.00. The proof indicated that J.A. Bennett's estate above his debts was worth approximately $50,000.00. Thus it appeared that E.C. Bennett was in no way interested in this debt; hence was not testifying for himself, and his evidence was properly admitted.
This claim was not barred by limitation, because the sale was made in 1920, and section 2518 of the statutes did not begin to run until January 1, 1921. Upon January 1, 1923 the bar would have been complete but for the death of J.D. Walker and the qualification of his executrix on December 6, 1920. Section 3847 of the statutes forbade suit against defendant before June 6, 1921. This period must be excluded in the computation of time when limitation is relied on. Fields v. Wallace,
No interest should have been allowed on this claim until it was proven, and its payment demanded, which was April 10, 1923. That was more than one year after the executrix qualified and section 3884 of the statutes forbids the allowance of interest on this claim until it is verified and its payment demanded. The lower court will correct its judgment accordingly. With this correction made, the judgment is affirmed.
