Gaffney v. Williamson's Adm'r , 21 Ala. 112 ( 1852 )

PHELAN, J.

— Where claims against an insolvent estate. are filed within six months from the time when the estate was declared insolvent, all objections to the allowance of such claims on final settlement must be filed in writing, by some creditor or the administrator de bonis non, within three months after the expiration of the time allowed for filing claims, or, in other words, within nine months from the date of the decree of insolvency. Hogan v. Calvert’s Adm’r, at the present term; 8 Ala., 455; Clay’s Dig., 194, §§ 10-11.

If a claim is filed in time, that is, within six months from the decree of insolvency, but is not verified by affidavit; and an objection in writing to such claim, because it is not so verified, is filed in time, that is, within three months after the expiration of the time for filing claims, the affidavit may be supplied at any time before or at the day set for final settlement of the estate. Brown v. Easly, 10 Ala., 566.

Yet, if a claim has been filed in time, but not verified by affidavit, and no objection in writing to such claim is filed within the time allowed for filing objections, that is, three months after the expiration of the time for filing claims, no objection can be heard against the allowance of such claim at the final settlement, for an insufficient verification by affidavit, the want of an affidavit, or any other cause. Hogan v. Calvert’s Adm’r, supra.

There was no distinct objection at the hearing below, that this claim was not filed in time; that question was doubtless considered as fully settled by the decision of this court when it was bere before. 12 Ala., 624. The only objections distinctly made at tbe trial, to tbe allowance of tbe claim, related to its justness and its proper verification by affidavit. The record shows that these objections were not filed in writing until long after tbe expiration of nine months from the date of tbe decree of insolvency, to-wit: on tbe 18th of July, 1846 ; and tbe court decided, against tbe protest of tbe claimant, to entertain them, and rejected tbe claim, on tbe ground that tbe same was not sufficiently verified or proved.

In this tbe court below erred. Tbe claim having been filed in time, and no objection in writing having been filed within the time prescribed by tbe statute, tbe Court of Probate should have admitted tbe claim, without permitting any objection to be beard going to tbe want of an affidavit, or for an insufficient affidavit, or to tbe justice of tbe claim.

If tbe record is to be construed in any part as presenting the objection that tbe claim was not filed in time, which may be done on slight ground we admit, since it was competent for tbe administrator or any creditor to raise this objection oven at tbe bearing; we do not hesitate to decide, that it appears from tbe record that this claim was filed in time. Tbe decree of insolvency was rendered on the 28th of April, 1845, and on tbe same day tbe claim was filed. Now, in the absence of other proof, wc are left to conclude whether it was filed before, or after the decree of insolvency. We cannot hesitate, in such case, to bold that it was filed after, since that is to give meaning and force, to what would otherwise be a nugatory and unauthorized act.

For tbe error in entertaining tbe objections to this claim on account of the insufficiency of tbe affidavit, made for tbe first time after nine months from tbe decree of insolvency bad expired, and rejecting tbe claim for want of proper proof, tbe decree of tbe Court of Probate is reversed, and tbe cause remanded.