Kelly v. Carter

McCay, Judge.

1. The affidavit is a substantial compliance with the Act of October 13th, 1870. The statute does not require the oath to be positive, and the affidavit is only preparatory to making proof on the trial. The plaintiff swears that according to the best of his knowledge, the taxes have been paid, except for two years, when he says that it was of such doubtful solvency as not to be taxable. This amounts to saying it was of no value, and is sufficient, in our judgment, to let the case go to the jury. If that is proven, that for those years the debt was worthless, had no value, it was not taxable. The affidavit must necessarily turn on the plaintiff’s opinion. The proof on the trial will show whether that opinion was right.

2. It would be straining section fourteen of the Act very much, to say that the facts of this case bring it within that section. These minors are not the owners of this note or any part of it. They have an interest in the residue, after the payment of debts and expenses, but even that is divided ■with others. Were there no debts and no other heirs, so that the administrator might fairly be said to be a trustee for them, we incline to think the fourteenth section would apply. As it is, they are not even the equitable owners. They are merely distributees of an estate, of which this note forms a part of the assets. They may get nothing.

But we reverse the judgment on the first ground.