Nicholas v. Sands

136 Ala. 267

Opinion

SITARPE, J.

A valid presentation of a claim against a decedent’s estate may be made to the administrator personally 'without verification of the claim by affidavit or otherwise. — Code, § 130; Perry v. Farmers' etc. Bank, 132 Ala. 82. Hence the admissibility of evidence to prove such presentation and existence of McKay & Roche’s claim against the intestate’s estate was not dependent on whether the same was verified. After presentation the statute of limitations did not run against the claim unless and until the claimants were by the administrator or some one interested in the estate, notified to sue thereon (Code, § 2817). The burden of proving at the trial that such notice was given, was on the appellant. No evidence of notice was introduced and, therefore, the claim of McKhy & Roche was not shown to have been barred.

There was evidence tending to show these claimants presented their account, to the administrator within the time allowed by the law for presentation, and testimony of the witness "Rutherford tended to prove the account was correct. All of Rutherford’s testimony was not hearsay. The court did not err in overruling the motion to strike out that testimony as a whole or in overruling the motion to disallow the claim of McKay & Roche.

Costs accruing in the ordinary course of the administration become a charge against an estate proper to he proved and considered in trying the issue 'of insolvency. Hatchett v. Curbow, 59 Ala. 516.

The charge to the jury was inaccurate in that it defined the issue as being whether the jury considered the estate insolvent, instead of whether it was in fact solvent, but. that inaccuracy was not such as could have unduly influenced the jury to find the true issue against the appellant and is not ground for reversal.

" What has been said disposes of the assignments of error.

Affirmed.