Rinehart v. Wheeler

Humphreys, J. This suit was brought on March 15, 1923, by appeHants against appellees in the' circuit court of’ Jefferson County to recover $25,000- in behalf of Ollie Nelson Rinehart and $15,000 in behalf of Hervey Bost, a minor, against the estate of Daniel Nelson, deceased. Ollie Nelson Rinehart was the daughter and Hervey Bost the grandson of the deceased. Daniel Nelson died on April 1, 1922, owning a large estate. On the twelfth day of April, 1922, joint letters of administration of his estate were issued to C. K. Wheeler and Ollie Nelson Bost, widow, who, prior to the institution of this suit, married a man- by the name ’of Rinehart. It is stated in the amendment to the complaint that the suit is for damages growing out of -both contract and tort. The contract "seems to have been set out by way of inducement, the gist of the action being the contraction by appellants of tuberculosis from the deceased in his lifetime. Tt was alleged in the complaint that Mrs. Rinehart, née Bost, disposed of her home in Conway County and moved with her children to her father’s plantation in Jefferson County for the purpose of keeping house for him and assisting in the management of his plantation, with the understanding that he would give her his property at his death;-that her father had tuberculosis, hut withheld this information from her; that, as,he became weaker from the disease in the later years of his life, it became necessary for her and her son Hervey to sleep in the room of her father at nights in order to wait upon .him, which resulted in both of them contracting the disease. The prayer in the complaint and amendment thereto was for damages on account of the negligence of the deceased in causing them 'to contract the disease. Theré was no prayer in the -complaint for la performance ■of the contract. As we construe it, the action is one for tort. The administrator, O. K. Wheeler, filed a demurrer to the complaint and also a motion to enter a nonsuit, for the reason that the claims were not authenticated in the manner required by law when presented to the administrators, and when suits were brought thereon. The court heard testimony upon the motion to enter a nonsuit, and sustained it, from which is this appeal. . • Appellant first contends for a reversal of the judgment -because it was unnecessary to authenticate a claim for damages against an estate when presented to an administrator for allowance, or when suit is brought thereon. Appellant is in error in this contention, for the term “demand,” as: used in the statute requiring all claims to be authenticated. against estates, includes all claims capable of assertion against an estate of a deceased person. Hayden v. Hayden, 105 Ark. 95; Davenport v. Davenport, 110 Ark. 222; Keffer v. Stuart, 127 Ark. 499. Appellant’s next contention for a reversal of the. judgment is that the’ authentication met the ■. requirements of the statute. The form of affidavit used- in ’authenticating-the claim was -that the facts were true and correct. This did not substantially meet the requirements of § 101 of Crawford & Moses’ Digest'. That section: requires that á claimant shall state “that nothing has been paid or delivered toward the satisfaction of the demand except what is credited thereon, and that the same demand, naming it,- is justly due. Such affidavit is a prerequisite to the right of action, and must he . exhibited within one year from the appointment of the administrator. Chapman v. Railroad Co., 97 Ark. 300. No error appearing, the judgment is affirmed.