McKnoll v. Wear's Admr. , 1 Ky. Op. 447 ( 1867 )

Opinion oe the Court by

Judge Hardin:

It is the duty of a claimant, before commencing an action against a personal representative on an account against the estate of a decedent, to demand its payment and accompany the demand with proof of the account, as well as with his own affidavit, one of the objects of the law being to furnish the personal representative with a proper voucher by which he can obtain credit in his settlement, by the payment when made. If proof of the claim can only be made by the personal representative, and he being required shall refuse to make the requisite affidavit, such refusal would dispense with the proof as a prerequisite to the commencement of the action (1 Met. 600). But it does not appear that the administratrix of Wear refused or was required to give an affidavit proving the justness of the claim, and we are clearly of the opinion that her mere admission of the correctness of the demand and willingness to pay it did not bind her successor in office to do so and accept an insufficient voucher by which he could not properly have been credited in his settlement.

We are, therefore, of the opinion that the court properly dismissed the action.

And the judgment is affirmed.