P. & M. Bank of Mobile v. Smith

COLLIER, O. J. It has been held, that a claim against the estate of a deceased person, which is adjudged insolvent, need not be verified by affidavit within the time prescribed by the act of 1843, for filing such claims. The creditor, as a matter of right, may make the affidavit, if the administrator, or other creditors, object the want of it, “ any time before the estate is by the statute, set for final settlementand it is within the discretion of the court to permit an affidavit to be filed afterwards, if a decree has not been rendered di [418] recting distribution amongst the creditors. So where the adjudication of the claims against an insolvent is continued to a time beyond that first appointed for a settlement, the creditor’s affidavit, (for the want of which exception is taken,} may be made any time before it is passbd upon. See Hollinger v. Holley, 8 Ala. Rep. 454; Shortridge v. Easley, 10 Ala. R. 520; 10 Ala. R. 564; Campbell’s adm’r v. Campbell’s creditors, 11 Ib. 730; Gilbert v. Brashear & Gooch, 12 Ib. 191; Rowdon v. Young, 12 Ala. 234; Cook v. David, Ib. 551; Rutherford’s adm’r v. The Br. B. at Mobile, at the last term. In the case before us, the bill of exceptions shows, that the claim was filed in due season, but the objection is, that the affidavit of its justness was made before the decree of insolvency, and by an improper person. In answer to the first objection it may be said, that the statute does not prescribe the time when the affidavit shall be made, and we cannot think the verification is irregular if it bears date after the qualification of the administrator, although it be previous to the recognition of the orphans’ court of the declaration of insolvency. If the claim is then verified, the object of the statute will be subserved. Such an affidavit will show that the intestate did not discharge the claim, that it was a subsisting liability, at the time of his death; and if the administrator has since paid it, the onus of proving the fact devolves upon him, no matter when the affidavit was made. Whether the secretary of the commissioners of the bank was the proper person to verify the claim, will depend upon the fact whether he was their agent, intrusted with the duty of collecting the debts due the bank. If he possessed such authority, we think he comes within the meaning of the statute, which directs the claimant to verify the demand. But if the commissioners were the actual receivers of the debts due the bank, they should make the affidavit. Until the court passed upon the exception to the claim for the supposed defectiveness of the affidavit, the creditor need not have substituted another, so as to meet the requisition of the administrator. He should have been allowed upon the exception being sustained, to perfect the verification. The [419] proceedings for the adjustment of. the estate were still in fieri —the settlement was in fact continued beyond the day designated upon the record for that purpose; and this was quite sufficient to have authorived the court to admit the affidavit, within the principle of Gilbert v. Brashear & Gooch, supra. It results from this view, that the orphans’ court should have permitted, (if necessary,) the claim to be verified when the exceptions were sustained. The decree is therefore reversed and the cause remanded.