Langrell v. Wright

80 A. 235, 25 Del. 311, 2 Boyce 311, 1911 Del. LEXIS 36

Opinion

Pennewill, C. J.

delivering the opinion of the court:

The statute seems to be plain upon this question. Section 29, of chapter 89 of the Revised Code, at page 677, provides:

“Before an executor, or administrator, shall pay any debt against the deceased, the person holding the same shall make affidavit that nothing has been paid or delivered towards satisfaction of said debt, except what is mentioned, and that the sum demanded is justly and truly due.”

Later in the section there is this provision: “If affidavit, as above required, be not produced in an action against an executor or administrator, for a debt against the deceased, the plaintiff shall, upon motion, be nonsuited; and if such action shall have been brought, without previously exhibiting to the defendant an affidavit in due form, the plaintiff shall not recover any costs,” etc.

The probated account not having been produced as required by the statute, let a nonsuit be entered.