Hill's Adm'r v. Grizzard

• Decision Date: 13 May 1909
• Parties: HILL'S ADM'R v. GRIZZARD et al.
• Court: Kentucky Court of Appeals

119 S.W. 168

133 Ky. 816

HILL'S ADM'R v. GRIZZARD et al.

Court of Appeals of Kentucky.

May 13, 1909

Appeal from Circuit Court, Madison County.

"To be officially reported."

Action by John W. Moore, administrator of Patsy Hill, against William Grizzard and others. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

J. C. &amp D. M. Chenault, for appellant.

W. S Moberley, for appellees.

HOBSON J.

On June 14, 1895, J. S. Grizzard executed to Elby Hill a note for $500 and a mortgage on a tract of land to secure it. Elby Hill assigned the note to Patsy Hill. She died, and John W Moore was appointed as her administrator. J. S. Grizzard died leaving no personal property, and there was no administration upon his estate. On December 30, 1908, Moore, as the administrator of Patsy Hill, brought this suit against the children of J. S. Grizzard, alleging these facts and praying a sale of the land for the satisfaction of the debt which he alleged was wholly unpaid. He also alleged that the note was lost and for that reason could not be filed with the petition. The defendants appeared and entered a motion to dismiss the action on the ground that no demand had been made for the payment of the note before the action was brought, that the claim was not verified as required by law, and that an indemnifying bond as required by section 7 of the Civil Code of Practice had not been executed. The court dismissed the action on the ground that the claim had not been verified, refusing to allow the plaintiff to verify the claim. The plaintiff appeals.

Section 3870, Ky. St. (Russell's St. § 3901), requires that all demands against the estate of a decedent shall be verified by the written affidavit of the claimant or by his representative, stating that the demand is just, and has never to his knowledge or belief been paid, and that there is no offset or discount against it or usury in it. Section 3872, Ky. St. (Russell's St. § 3903), is in these words "Before such affidavit is made, no action shall be brought or recovery had on any such demand, nor until demand of payment thereof has been made of the personal representative, accompanied by the required affidavit." Section 3874, Ky. St. (Russell's St. § 3905), is also as follows: "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." These provisions are a part of the chapter on personal representatives, and it has been held that where there is no personal representative, or the suit is brought for a settlement of the estate by a creditor, the demand of the personal representative is unnecessary. Gay v. Louisville, 93 Ky. 349, 20 S.W. 266; Huffman v. Moore's Adm'r, 101 Ky. 288, 41 S.W. 292. In such cases it is held that the claim must be verified before judgment. Isom v. Holcomb (Ky.) 110 S.W. 249; Albertson v. Prewitt (Ky.) 49 S.W. 196. Section 2089, Ky. St. (Russell's St. § 3865), is as...