Walters v. Prestidge , 30 Tex. 65 ( 1867 )

Coke, J.

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.

The account, with the accompanying affidavit and indorsement, was filed as an exhibit with the petition, and its presentation and rejection averred. The appellant answered by a general demurrer and various pleas to the merits, and afterwards by amendment excepted specially, on the ground that the account was not authenticated by the affidavit of the appellee, as required by law. The exceptions to the petition and exhibit were overruled by the court below, and the case was submitted to the court upon the proof, without the intervention of a jury, and judgment rendered for the plaintiff below for $740 and costs. The defendant, Walters, prosecutes this appeal. There is neither bill of exceptions nor statement of facts. The only error assigned is the overruling by the court of the exceptions to plaintiff’s petition, which ruling appears in the record. We are of opinion that the assignment is well taken, and that the court erred in overruling the exceptions.

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-intestate, nor shall any chief justice approve of any such allowance, unless such claim is accompanied "by an affidavit in writing that the claim is just, and that all legal offsets, payments, and credits, known to affiant, have been allowed.” [Paschal’s Dig., Art. 1309, ¡Note 483.] This section is a clear limitation upon the authority of the administrator or executor to allow, and of the chief justice to approve the allowance of, any such claim, except, when authenticated by such an affidavit as it prescribes, just as the succeeding section (Art. 1308) is a limitation upon the right of the holder to sue upon his claim, unless it has been first presented, properly authenticated, and rejected. The question then arises, is the claim sued on in this action authenticated in the mode prescribed by the statute? We are of opinion that it is not. Without entering upon a philological discussion, in order to arrive at the meaning of the terms “offsets, payments, and credits,” it is very clear, from the terms themselves, considered with reference to the purpose and policy of the law, that they were intended to comprehend every claim for money, of whatever character, existing in favor of the testator or intestate, against the holder of the claim, and every right or equity which, if allowed, would reduce the amount of the claim presented, to the end that the balance remaining, after deducting these allowances, should represent what is due from the estate to the holder of the claim, after an honest and fair statement of all pecuniary matters between the parties. As words are used to convey and express ideas, so when these ideas are conveyed in the affidavit of authentication, the affidavit would be good under the statute, although couched in different language from that used in the statute. In Crosby v. McWillie, 11 Tex., 96, where the precise language of the statute was not employed in the construction of the affidavit, it was nevertheless held good, because it conveyed the same meaning.

The affidavit authenticating the claim sued on in this case is not in the language of the statute, and clearly falls short of conveying the same meaning. It avers the claim to be “ correct and just, after allowing all proper credits.” The term “ credits,” in its most comprehensive signification, as contradistinguished from “ debit,” might possibly be held to embrace all that is necessary; but it has another and more restricted meaning, which would narrow it down to a signification nearly synonymous with “payments,” which clearly would not fill the requirements of the statute, as in this 'sense it certainly does not include “offsets.” The policy of the law is manifestly to protect the estates of deceased persons against unjust demands, as well as to save the expense of litigation over those which are just and should be paid. With the intestate or testator is buried most usually all knowledge of his business transactions, except what" may be derived from his papers, which generally is meager and unsatisfactory, and not unfrequently is unintelligible; without explanations which no one living can give. Thus poorly advised of the interests and rights and liabilities of the estate, the executor or administrator, however energetic and faithful he may be, is frequently compelled to rely solely upon the affidavit of authentication for his information in regard to the claim presented, and such “offsets, payments, and credits” as should be . allowed. A knowledge of these facts was doubtless in the legislative mind when this law was enacted, and it was intended by the affidavit prescribed to search and sift the conscience of the holder of the claim beyond his power of evasion or mental reservation, so that the very truth and justice of the transactions between him and the decedent could be arrived at. Sound policy, no less than the letter and spirit of the law, requires that the courts shall effectuate this intention.

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 that direction, and should be preserved and enforced, and construed with reference to the evils it was intended to provide against. This can only be done by requiring of the holder of the claim the affidavit prescribed by the statute, and if he elect to frame his affidavit in language different from that used in the statute, by requiring that it shall be equally comprehensive, expressive, and certain, and equally exhaustive upon his conscience. So far from coming up to these requirements the affidavit for authentication in this case uses a part of the language prescribed in the statute, and omits other portions equally important, without pretending to substitute for it other language expressive of the same ideas.

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 provides that the claim, when presented, shall he 66 accompa-' nied hy an affidavit in writing.” It is left to the judgment and discretion of the administrator to decide whether the affidavit is made by the proper person who is cognizant of the fact. (Dunn v. Sublett, 14 Tex., 521.) lío such discretion is left with the administrator with reference to the affidavit of authentication. If this be wanting in any of the essential requisites prescribed by the law, he is forbidden to allow the claim, and if he does allow it under such circumstances, his act is expressly declared to be of no force or effect. (Art. 1158.) The statute, as we have seen, forbids suit by the holder upon a claim which, on account of insufficient authentication, the administrator is not permitted to approve. It would be repugnant to the plainest and soundest rules of construction to permit this prohibition to be evaded, and the right" to sue conferred on the holder of the claim by the act of the administrator, or his omission to designate the cause of his rejection. Such a construction would be violative not only of the plain letter of the law, but subversive of its obvious spirit and policy, which, among other purposes, aims to defeat the possibility of collusion between the holder of a dishonest claim and a faithless representative, and cannot be tolerated.

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.]