Layton F. Puckett v. James L. L. McCall, Adm'r, 30 Tex. 457

Caldwell, J. This is a suit instituted in the district court of McLennan county to set aside and annul an appeal claim of $7,000, which had been established in the county court against the estate of appellee’s intestate. As the legality of this method to correct the' error, if indeed one exists, has been suggested, we cite Heffner v. Brander, 23 Tex., 632, and authorities there quoted, for the regularity of the proceeding.

The appellant is the owner of an approved claim against the estate of appellee’s intestate, and seeks a reversal of the judgment of the county court, on the ground that it would render the estate of appellee’s intestate insolvent, and he would thereby probably lose the greater part of his debt. The judgment of the county court was affirmed.

In the progress of the trial defendant excepted to the ruling of the court in permitting appellee to “read in evidence the note for $7,000 sought to be established as a claim against the estate of Barrett, without the same having been first verified by affidavit, as required by law.” (Paschal’s Dig., Art. 1309.) This is the only error assigned which we deem material to notice. The appellee is administrator of the estate and also attorney for the legal owners of the claim. He relies on

article 1394 of Paschal’s Digest as dispensing with this affidavit in cases of executor and administrator, their agents and attorneys. This

article provides that the provisions of the “ act respecting the presentation of claims shall not be construed to apply to any claim of an executor or administrator against the estate of his testator or intestate that has not been allowed by some previous executor or administrator of the same estate; ” and a special mode is indicated which they shall pursue to have their claims approved for payment. In construing this article, we should observe and steadily keep in view that it is special in its character; that it provides for a particular class of persons, held to a rigid rule; and therefore ought to receive such an

interpretation as would give complete effect to each and every requirement of the act of which it is a part. Legislative wisdom, for greater security of estates, has prescribed, as a condition precedent, that every claim for money against an estate shall be accompanied by an affidavit of its justness, &c., before it can be presented for allowance and approval. The claim is mere waste paper without it, and the executor or administrator is under no legal obligation to notice it; but where an executor or administrator is the owner, it would be an absurdity to suppose that he could present it to himself.

Hence the obvious necessity of dispensing with—what? The affidavit? We think not. The language is explicit. The “ presentation of claims” only is waived. (Paschal’s Dig., Art. 1394.) The affidavit furnishes some security against unjust claims, and, if falsely taken, the perjurer may be held to answer at the bar of criminal justice. Then why should this security be relaxed in favor of executors and administrators, who have the greatest facility for committing spoliations upon estates? What hardship or inconvenience is imposed upon them by making the affidavit ?

What right or privilege is abridged ? bTone that we can see, and by complying with this prerequisite every essential requirement of the act has its designed effect. We are therefore of opinion, that all claims for money against an estate, by whomsoever held, must be accompanied by an affidavit of their justness, &e., before their final approval, blot that it is to be regarded as evidence of the fact, for neither the courts nor representatives of an estate can look upon it in that light, blot even an inference favorable to the claimant can be drawn from it.

And when attached to the claim, it is but a compliance with a safeguard that must in nowise be omitted. Its effect, and only effect, is to purge the conscience, and put in awe of his Maker him who makes a demand against one with whom all extrinsic evidence of payment may lie buried in the tomb. In the case before us, we search the record in vain for any “legal evidence” whatever upon which to base the judgment of the court below.

According to our view, the note sought to be established could not have been “filed” as the basis of a claim without the affidavit; with the affidavit, the court would then hear all legal evidence offered in support of it. It may be here remarked, that appellee is not the owner of the claim, but holds it as attorney for collection against the estate of his intestate. Cases of this character call for the closest scrutiny and most exact compliance with the letter of the law.

The facility with which spurious and unfounded claims are trumped up, and by ex parte proceedings noislessly hurried through to an approval, is but too fatally attended by insolvent estates and impoverished families. We deem it unnecessary to remark on the paper read to the jury; it evidently had no effect on the trial. From the foregoing, the cause must be reversed and remanded; and the court below advised that the parties have such relief as they are entitled to, not inconsistent herewith. Reversed and remanded.