30 Tex. 65 | Tex. | 1867
This is a suit on an account, consisting of various items, amounting in the aggregate to $1,058 50, filed in the district court of Cherokee county, on the 7th of March, A. D. 1859, by the appellee, against the appellant, as administrator of the estate of Larkin Prestidge, deceased. The account was sworn to by appellee before a justice of the peace. The material part of the affidavit was in these words :
“ That the within account, as charged against the estate of Larkin Prestidge, is correct and just, after allowing all proper credits, to the best of his knowledge and' belief.”
The account was indorsed thus:
“I have examined and rejected this account, February 22,1859. A. C. Walters,
“ Administrator of Larkin Prestidge, deceased.
Article 1159, Hart. Dig., provides that “no holder of a claim for money against the estate of a deceased person shall bring a suit thereon against the executor or administrator, unless such claim, properly authenticated, has been presented to such executor or administrator, and he has refused to allow such claim, for the whole amount or a part thereof,” &c. [Paschal’s Dig., Art. 1810, Note 484.]
. The obvious effect of this clause of the statute is, to prescribe, as a condition precedent to the right to sue on such a claim, that it shall have been first presented, properly authenticated, to the executor or administrator, and by him rejected, either for the whole amount or in part. This must be averred and proved, in order to maintain an action on such a claim. (Fulton v. Black, 21 Tex., 425.) What shall constitute such proper authentication is clearly defined and prescribed in the preceding section of the statute, (Art. 1158,) in these words: “Ho executor or administra-, tor shall allow any claim for money against his testator or-
The affidavit authenticating the claim sued on in this
This is a safeguard thrown around the interests of estates of deceased persons, which, while not always sufficient to secure them a full measure of protection, goes very far in
It is insisted by the counsel for the appellee that, if the claim was rejected on account of insufficient authentication, this reason should have been given in the indorsement of the administrator, so that it could have been properly authenticated and again presented, and that, having failed to do this and rejected it generally, he is precluded from relying on that reason now, but must litigate it on its merits. We are referred in support of this position to Hansell v. Gregg, 7 Tex., 228; McIntosh v. Greenwood, 15 Tex., 116; Dunn v. Sublett, 14 Tex., 521; Shelton v. Berry, 19 Tex., 154; and Alford v. Cochrane, 7 Tex., 488. We have carefully examined these cases, and find nothing in any of thepi to support the position assumed by counsel. The result of these eases is, in substance, that where a claim against an estate is authenticated according to the requirements of the statute, but by the affidavit of a person who does not purport to be the owner thereof, or the agent of the owner, if the administrator would reject the claim on that ground, he must state such cause specially in his rejection, and cannot raise it for the first time when sued for the establishment of the claim. The rulings of the court in these cases we believe to be entirely correct. The statute has not declared by whom the affidavit shall be made: it only pro
We are of opinion, that the failure of the administrator to make his objection to the form and manner of authentication in his memorandum of rejection, did not preclude him from making the objection alleged in his exceptions, and that his exceptions should have been sustained.
Because of the erroneous ruling of the court the judgment is reversed, and the cause
Dismissed.
[Donley, J., having been of counsel, did not sit in this case.]