Johnson's Administrator v. Pigg
| Decision Date | 01 March 1932 |
| Citation | 242 Ky. 631 |
| Parties | Johnson's Administrator v. Pigg. |
| Court | United States State Supreme Court — District of Kentucky |
1. Executors and Administrators. — Burden was on claimant to prove claim against deceased's estate.
2. Witnesses. — Widow's testimony held competent to support doctor's claim against deceased estate for services rendered deceased.
3. Evidence. — Permanent record of doctor's account kept by banker obtaining information from physician's temporary memoranda held competent to support doctor's claim against deceased's estate for services rendered .
Book account was competent as permanent record, notwithstanding the fact that some of the original memoranda made by the doctor might have not been destroyed and was not produced, since the administrator did not pursue the effort to obtain the production of such memoranda if, in fact, it could be made available.
4. Executors and Administrators. — Where claim against deceased's estate was proven and presented to administrator within year after administrator's appointment, claimant held entitled to interest, notwithstanding proof was defective and was subject of subsequent amendment (Ky. Stats., secs. 3883, 3884).
5. Executors and Administrators. — Where suit to settle estate was filed and claim was asserted in pleading in that case, within year after administrator's appointment, claimant held entitled to interest (Ky. Stats., secs. 3883, 3884).
Appeal from Laurel Circuit Court.
H.C. CLAY and GEORGE G. BROCK for appellant.
C.R. LUKER for appellee.
Affirming.
The personal representative of W.D. Johnson has prosecuted an appeal from a judgment against the estate in favor of A.L. Pigg, who had acquired the rights of Dr. A.C. Foster. The basis of the judgment was an account for professional services rendered W.D. Johnson in his last illness. A reversal of the judgment is sought upon three grounds: (1) That the claim was not proven, as required by section 3870 of the Kentucky Statutes; (2) that incompetent evidence was admitted in support of the claim; and (3) that interest thereon was improperly allowed.
Section 3870 of the Kentucky Statutes provides: "All demands against the estate of a decedent shall be verified by the written affidavit of the claimant, or, in his absence from the state, by his agent, or, if dead, by his personal 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 the same, or any usury therein; and if the demand be other than an obligation signed by the decedent or a judgment, it shall also be verified by a person other than the claimant, who shall state in his affidavit that he believes the claim to be just and correct, and give the reasons why he so believes."
A suit to settle the estate was pending. A.L. Pigg filed a separate answer and cross-petition therein on the 6th day of May, 1929. He averred that he had acquired the claim of Dr. A.C. Foster for the sum of $790, which was for medical services rendered to W.D. Johnson, deceased; that the prices charged for the services were reasonable; that an itemized statement had been presented to the administrator shortly after the death of W.D. Johnson; that there was no offset or discount against the claim or any usury therein, and that the claim was just, due, and wholly unpaid. It was alleged that the claim had been transferred to Pigg on February 28, 1929. Nothing was said in the pleading in regard to the proof of the claim, but the pleading contained the appropriate averments, and it was duly verified by the claimant. No rule to produce a proof of claim appears to have been requested (Hibler's Admx. v. Bourbon Agr. B. & T. Co., 225 Ky. 629, 9 S.W. (2d) 1008; Gray v. Graziani, 165 Ky. 771, 178 S.W. 1070; Stix v. Eversole's Admr., 106 Ky. 516, 50 S.W. 832, 21 Ky. Law Rep. 3), but a response to the pleading was filed by the administrator. He also filed exceptions to the allowance of the claim by the master commissioner, who had reported in favor of allowing the claim. It further appeared that a verified claim had been filed by Dr. Foster, but it had been lost or misplaced and a new proof of claim was substituted. It is not disputed that the amended proof of claim was duly verified in accordance with the statute, but it is said that the secondary affidavit was insufficient because it did not state the reasons the affiant had for believing the claim was just. Dewhurst v. Shepherd's Exr., 102 Ky. 239, 43 S.W. 253, 19 Ky. Law Rep. 1260. The purpose of the affidavit is to advise the administrator that the claim is just and proper, and it was hardly necessary to file it after issue had been joined by the parties on the merits of the claim. The burden was upon the claimant to prove his claim. But notwithstanding these facts another proof of claim was filed conforming literally to the requirement of the statutes. Thereafter the court heard evidence and rendered judgment, and there can be no doubt that the demands of the law were satisfied. E.L. Martin & Co. v. Davis' Admr., 226 Ky. 722, 11 S.W. (2d) 912; Wallace & Tierman Co. v. Davis, 227 Ky. 71, 11 S.W. (2d) 990.
It is next insisted that incompetent evidence was considered by the court. Dr. A.C. Foster was called as a witness and permitted to testify, but the court thereafter excluded his testimony and refused to consider it, in so far as it related to transactions with the deceased. The widow of the deceased testified in favor of the doctor, and her testimony tended to sustain the claim. It is now insisted that she was incompetent to testify. The point is clearly lacking in merit. She was not testifying for herself as to any transaction with her husband, nor was she testifying for or against her husband. She was testifying against the administrator of her husband's estate as to facts which came to her knowledge independently and not because of the marriage relation. Her testimony was...
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