Stix v. Eversole's Administrator

CHIEF JUSTICE HAZELRIGG delivered the opinion of the court. A personal representative may waive the demand required by section 3872, Kentucky Statutes, of claims against the decedent’s estate (Thomas v. Thomas, 15 B. Mon., 184; Howard v. Leavell, 10 Bush, 481); and if he files a general demurrer to the petition it is then too late to object do the further prosecution of the action against him for want of such demand and proof (Usher v. Flood, 12 Ky. Law Rep., 721, [17 S. W., 132]). The trial court in the appeal before us dismissed the petition of the appellants upon the belief that there was not sufficient proof of a demand for the payment of the claim sued on, accompanied by .the proper affidavit. But prior to the motion to dismiss for that reason the appellees had filed a general demurrer to the petition. The attention of the trial court seems not to have been called to this fact, or to the question of waiver now raised. The judgment dismissing the petition is reversed, and cause remanded for proceedings not inconsistent with this opinion.