Crosby v. Moreland

• Decision Date: 01 January 1853
• Citation: 11 Tex. 94
• Parties: CROSBY v. MCWILLIE AND MORELAND.
• Court: Texas Supreme Court

11 Tex. 94

CROSBY

v.MCWILLIE AND MORELAND.

Supreme Court of Texas.

1853.

It seems that where the authentication of a claim against an estate is defective, the claimant is not required to sue within three months after its rejection by the administrator, although the rejection be general and absolute. (Note 20.)

A plea by an administrator, that the claim, properly authenticated, was presented and rejected more than three months before the suit was commenced, is good; although it may have been again presented and rejected within that time.

It is not necessary that an affidavit in authentication of a claim against an estate should pursue the words of the statute, if the substance be retained; “that the debt and interest, mentioned in the accompanying deed of trust, is a just and subsisting claim against the estate of Josiah J. Crosby, late of said county, deceased, and that the same has never been paid, or any part thereof-- that there are no off-sets against the same,” was held to be sufficient. (Note 21.)

Appeal from Washington.

J. Sayles, for appellant.

Horton and Shapard, for appellees. I. The first affidavit was defective; it did not state that there were no credits, or that all just credits had been allowed. The statute distinguishes between payments, set-offs, and credits, and requires all to be negatived.

II. The affidavit was defective on account of its uncertainty; it did not state the amount of the claim nor to whom due.

LIPSCOMB, J.

This suit was brought on a claim against the plaintiff in error, as administratrix of Josiah Crosby. The most material question for our consideration, arises on the refusal of the Court below to give the third charge asked by the counsel for the defendant in the Court below; it was as follows: That “the plaintiffs have no right to say that the affidavit of James R. Jenkins, their attorney made on the 25th January, 1851, was not good; and that they are not thereby excused from commencing suit within three months from the rejection of the claim by the administratrix.” The affidavit, referred to in the charge asked and rejected by the Court, is as follows, i. e.: “Personally appeared before me, James L. Farquhar, an acting Justice of the Peace in and for said county James R. Jenkins, as agent and attorney for McWillie and Moreland, the par ties mentioned in annexed deed of trust, and after being duly sworn, says that the debt and interest, mentioned in the accompanying deed of trust, is a just and subsisting claim against the estate of Josiah J. Crosby, late of said county, deceased, and that the same has never been paid or any part thereof--that there are no off-sets against the claim; and he further states that no notes were taken, as mentioned in the deed of trust, at the execution of the same.” Signed, James R. Jenkins, agent and attorney of McWillie and Moreland,” and attested, “Sworn to and subscribed before me, this 25th January, A. D., 1851,” signed “James L. Farquhar, J. P. W. C.” With the above authentication, the claim was presented for acknowledgment, on the 1st May, 1851, and answered, “The within claim will not be paid.” Signed, “Elizabeth M. Crosby, administratrix of J. J. Crosby.” If this presentation and rejection of the claim, are such as come substantially within the requirements of the statute, before a suit could be brought in the District Court against the administratrix, the Court below erred in refusing to give the charge, asked by the counsel for the administratrix; because the record shows that the suit was not brought within three months from the...