Bailey's Adm'r v. Hampton Grocery Co.

• Decision Date: 12 October 1920
• Citation: 224 S.W. 1067,189 Ky. 261
• Parties: BAILEY'S ADM'R v. HAMPTON GROCERY CO. ET AL.
• Court: Kentucky Court of Appeals

224 S.W. 1067

189 Ky. 261

BAILEY'S ADM'R v. HAMPTON GROCERY CO. ET AL.

Court of Appeals of Kentucky.

October 12, 1920

Appeal from Circuit Court, Knott County.

Action by the Hampton Grocery Company against J. M. Bailey administrator of Sarah J. Bailey, deceased, and others. From an adverse judgment, first-named defendant appeals. Reversed in part and affirmed in part and remanded.

J. M Bailey and A. B. Combs, both of Hindman, for appellant.

J. M Baker and H. H. Smith, both of Hindman, for appellees.

HURT J.

This action was by one of the creditors of the estate of Sarah J. Bailey, deceased, against her surviving husband and administrator, J. M. Bailey, Fred Crowder, her only heir, and certain of her creditors known to the plaintiff, for the purpose of settling and distributing her estate as provided by section 428, Civil Code, and the sections following and relating thereto. On the 21st day of March, 1916, the action was ordered to be referred to the master commissioner of the court, as provided by section 430, Civil Code. On the 2d day of July, 1917, J. M. Bailey filed an answer, counterclaim, and cross-petition, in which he set up various items of indebtedness of the decedent's estate to him as an individual.

These claims were, none of them, founded upon a written obligation of the decedent to the claimant, and he did not file with his pleading a formal statement of his account, verified and proven as required by section 3870, Ky. Stats., but the items of indebtedness were set out in the body of the pleading, and the affidavit required by section 3870, supra, by a claimant against a decedent's estate, was incorporated in the pleading, and the pleading verified by his oath, but no affidavits of any other person were filed with the pleading, who deposed, that he believed the claims were just and correct, and giving his reasons therefor, as required by section 3870, supra, when a claim against an estate of decedent is not founded upon a written obligation of the decedent, or a judgment. On April 5, 1918, the appellant tendered in open court an amended answer, counterclaim, and cross-petition, which related entirely to claims in his favor as administrator against the estate of the decedent. To the filing of this paper objection was made, and motion to file was submitted, but was never passed upon by the court. On the same day the commissioner filed a report, showing the claims of indebtedness against the estate, which had been filed with and allowed by him, and also reported the sum of the collections, and the value of certain articles of personal property which had been made by and which had gone into the hands of the appellant as administrator, and also the value of a small tract of land which was owned by decedent, and the face value of certain notes and accounts belonging to the estate, and which had not been collected by the administrator. It does not appear whether the appellant, as administrator, had ever made an inventory, or caused an appraisement of the estate to be made. The appellant filed exceptions to the report of the commissioner, one of which was sustained, and the others overruled, and the report approved. The appellant, as administrator, was directed by an order of the court to pay over to the commissioner for distribution among the creditors, whose claims had been allowed, the money in his hands, and the value of certain articles of personal property in his hands, which he had not reduced to money. From the judgment of the court, including that upon the exceptions to the report, Bailey, both as administrator and as a claimant, has appealed. The exceptions to the report of the commissioner will be considered in their order.

(a) The report did not touch upon any of the claims of indebtedness against the estate set out by appellant in his favor, either in his original answer, counterclaim, and cross-petition or in the amendment offered thereto, and this action by the commissioner in neither allowing nor in his report stating the disallowance of the claims constituted one of the grounds of exception which was overruled by the court. The appellees justify the ruling upon the ground that claims of appellant were not verified and proven by him, as required by section 3870, Ky. Stats., and demand made for their payment, before suit brought, as required by section 3872, Ky. Stats., and that they were not presented to the commissioner for consideration, verified and proven, as required by law. Touching these contentions, it may be said that, the claims being in favor of the personal representative himself, no demand by him was necessary or possible, as it would be idle to require him to make a demand of himself, and, besides, no demand is necessary on the part of a claimant of a personal representative of an insolvent decedent, as Mrs. Bailey appears to have been, when the claim is sued upon in an action to settle the estate under section 428, Civil Code. Crane & Breed Mfg. Co. v. Stagg's Adm'r, 135 Ky. 435, 12 S.W. 225; Grey's Ex'r v. Lewis, 79 Ky. 453. The want of necessity for a demand of payment of a claim, verified and accompanied with the proof of its justness and correctness, does not, however, dispense with the necessity of the claimant verifying and proving his claims against a decedent's estate in the manner and as required by section 3870, Ky. Stats., as section 3874 provides in broad terms that--

"No demand against a decedent's estate shall be paid by his personal representative, or allowed as a credit by any commissioner or court, which is not verified by affidavit, as required herein."

In Horner v. Harris' Ex'r, 10 Bush, 357, Callender's Adm'r v. Callender, 70 S.W. 844, 24 Ky. Law Rep. 1145, and Beddow v. Wilson, 90 S.W. 228, 28 Ky. Law Rep. 661, which were actions for the settlement of estates of decedents, and in the first and second ones of which it was held that a creditor had the right to set up his claim against a decedent's estate by a pleading, if he desired to do so, but when he did so, if the claim was disputed, he was entitled to have the grounds of a defense to it set up, either by answer or by exceptions to the report of the commissioner allowing it, and containing the denials or allegations necessary to present a defense. In the first and last of the above-cited cases, it was held that a petition or answer of the claimant containing the necessary allegations, and sworn to by the claimant, was a sufficient verification of the claim, where no other verification than the oath of the claimant was necessary, as when the claim was founded upon a written obligation of the decedent. In the case of Warfield v. Gardner's Adm'r, 79 Ky. 583, it was held that the claim should be stated, verified, and proven in a document, other than the pleading, and filed with the pleading, but that was in an action at law, where a judgment was sought against the personal representative upon a set-off. Hence it seems that appellant had the right to set up his claims by his answer, counterclaim, and cross-petition as he did, and the verification of the pleading by him containing the averments required by section 3870, Ky. Stats., was a sufficient verification of the claim, so far as appellant himself was required to do, but, his claims not being based upon written obligations, signed by the decedent, nor upon judgments, the proof of the claims was not such as is required by the statutes, supra, as the affidavit of no witness, stating his belief that the claims were just and correct, and giving his reasons therefor, accompanied the pleading. However, a motion by any party to a suit of this character for a rule to require a complete formal, prima facie proof of the claims by appellant, or suffer a dismissal of his counterclaim and cross-petition, would not have prevailed, because, as held in Huffman v. Moore's Adm'r, 101 Ky. 288, 41 S.W. 292, 19 Ky. Law Rep. 461, this, being an action under section 428, Civil Code, involved a reference to the master commissioner to pass upon and report every claim and demand that might be presented and each of which must be verified and proved, as required by the statute, before being allowed, and, if not so proven and verified, to be rejected by the commissioner. Sections 430, 431, 432, Civil Code. The claimant in such an action, although the formal verification and proof of his claim was insufficient in his pleading, might thereafter present to the commissioner his claim, properly verified and proven, and the right to have it allowed would depend upon strict compliance with the statute in that regard. In the instant case, the appellant followed the filing of his verified answer, counterclaim, and cross-petition, which set up his claims, with the depositions of various witnesses taken before the commissioner, and cross-examined by the attorney for the plaintiff in an effort to prove his claims, and their evidence the commissioner reported to the court. It would seem that in an action of this character, this was a substantial compliance with the requirements of the statute as to the verification and proof of the claims, if the depositions of the witnesses do in fact prove such facts, and show the claims of indebtedness to be just, correct, and unpaid. Spradlin v. Stanley's Adm'r, 124 Ky. 701, 99 S.W. 965, 30 Ky. Law Rep. 928.

The contention advanced by appellant, that, inasmuch as he set out his claims in pleading by an answer, counterclaim, and cross-petition, and the averments in it were never denied nor demurred to, he was entitled to have a judgment for the amount of his claims as in any other action where the material averments of the pleading are not denied, is not tenable. A distinction must be drawn between the case where a personal representative, or the heirs...