Moring v. Flanders ( 1873 )

Trippe, Judge.

The lien claimed by the plaintiff existed in parol. We cannot see that any damage could result in permitting him to make the affidavit, and thus have the claim put that far in such a form as would enable him to assert whatever priority he might have, if any, in the distribution of .the assets of his deceased debtor. If he has none, no hurt is done, and he has his cost to pay. If the claim is paid by the administrator, he can have a voucher in a more satisfactory form — the very form, probably, that he should require in just such a case as this, where it was a verbal contract. The administrator thus paying it, if he did so in proper time, should not be taxed with any cost.

We think to allow this is not in violation of the law exempting administrators from suit for twelve months. The affidavit, without process to enforce it, is not a suit. But no levy could be made by virtue of any execution issued on such affidavit within the period of the twelve months exemption. That would be a clear violation of the rights of the administrator. He has the right to contest the claim, and should have due time therefor. No judgment has been obtained against the intestate in his lifetime, and no opportunity for any one to be heard. The representative of the estate cannot at once be thus forced into litigation. Besides, he has the time allowed him, so that he may inquire into the condition of the estate, the amount of assets and the liabilities. Many of the debts or liabilities may have preference over this. Expenses of administration, funeral expenses, etc., stand on a footing that entitle the administrator to time for investigation into the condition of the estate, so as to ascertain what the priorities may be as between creditors, including the widow and the minor children.

The Court was not in error in dismissing the levy. The affidavit should have been permitted to stand. There was no necessity to vacate it.

Judgment reversed, in so far as the affidavit was dismissed.