WILLSON, O. J.
(after stating the facts as above). On the theory that it appeared from the testimony that the claim sued.upon was first presented to and rejected by him as administrator July 10, 1922, appellant insists the trial coprt erred when he overruled his (appellant’s) plea in abatement, and refused to dismiss the suit on the ground that it was not commenced within 90 days from that date. The contention is predicated on a statute (article 3449, Vernon’s Statutes) as follows:
“When a claim for money against an estate has been rejected by the executor or administrator, either in whole or in part, the owner of such claim may, within 90 days after such rejection, and not thereafter, bring a suit against the executor or administrator for the establishment thereof in any court having jurisdiction of the same.”
It appeared from an exhibit, made a part of the plea in abatement, that at the time the claim was rejected July 10, 1922, it was not otherwise proven than by the affidavit of appellee that it was “true and correct [quoting] and all credits to which the same is entitled have been given.” Appellee insists that such proof was not sufficient, and that appellant therefore was bound .to reject the claim without respect to whether it was a meritorious one or not, and that, because appellant was so bound, his rejection of the claim at the time stated did not have the effect claimed for it.
We think appellee’s .contention must be sustained. By the terms of the statute (article 3439, Vernon’s Statutes) appellant was without power to allow the claim unless it was “accompanied [quoting] by an affidavit in writing that the claim is just and that all legal offsets, payments and credits known to affiant have been allowed.” In Walters v. Prestidge, 30 Tex. 65, the affidavit was that the claim was “correct and just [quoting] after allowing all proper credits.” The words used were held not to be the equivalent of those used in the statute, and a right in the plaintiff to maintain a suit on the claim was therefore denied. It will be noted that the, defects in the affidavit in the instant case are practically the same as were those in the Walters Case. In Hooks v. Martin (Tex. Civ. App.) 229 S. W. 592, as here, the affidavit to the claim when it was first rejected by the administrator was fatally defective, and, as here, the claim was later again presented to and rejected by him. In
that case, as in this one, the suit was com-ihenced within 90 days after the claim was last rejected, but more than 90 days after it was first rejected. The claim was not being verified as required by law when, it was first presented to the administrator. It was held that his rejection of it “did not set in motion the statute of 90 days’ limitation.”
After the witness Evans had testified that he had conversations with Herman Parsons, the first probably about 1912, with reference to appellee’s paying the premiums, it appears from a bill of exceptions that he was permitted to testify, further, over appellant’s objection, as follows: i
“The substance of it [the conversation with Herman Parsons] was that, if Fannie Parsons would pay the premiums on that policy she could be protected in the policy and have her money out when the policy was collected; all the premiums as she paid that she would have first lien on the policy for what she had paid in and I instructed them how, in order to protect her, it should be done; that it was necessary for that policy to be indorsed to her as her interest might appear.”
The ground of the objection was that the testimony tended to prove a contract within the statute of frauds, in that it was not in writing and was “not to he performed within the space of one year” from the time it was made. Article 3965, subd. 5, Vernon’s Statutes.
It is not very clear, from the way the matter is presented in afipellant’s brief, whether his contention here that the court erred in overruling his objection is on the theory that the testimony tended to show that the contract was entered into more, than a year prior to the time any premiums would become due and payable on the policy, or on the theory that it tended to show that more than a year must uecessarily elapse before any other than one premium could become due on the policy. But we think there was no merit in the objection on either theory. It appeared from other testimony before the court that a premium on the policy became due and payable April 12, 1913, and that one became due and payable thereon on the same day each year thereafter during the lifetime of the insured. ■ The testimony of Evans was that the first of the conversations he referred to was “probably about 1912,” If that testimony “tended” to prove that the contract between the parties was entered into more than a year before April 12, 1913, when the premium first paid by appellee became due, it certainly did not prove' it, and we think it must, if believed, to render it inadmissabie on the ground urged against it. Adair v. Stallings (Tex. Civ. App.) 165 S. W. 140.
As to the other theory, a rule applicable is. that— . '
“An agreement which may or may not be performed within a year, is not required by the statute of frauds to be in writing; it must appear from the ' agreement itself that it is not to be performed within a year.” Thouvenin v. Lea, 26 Tex. 612.
And other rules applicable are stated as follows in 27 C. J. 182:
“Oral agreements to continue to do some particular act until the happening of a certain contingency, such as the termination of a specified existing state of affairs, are valid if the contingency is one which may happen within the year, although it is possible that it may not happen within that time. An oral agreement to continue to do some particular act for an indefinite period of time is not within the statute, where it may be determined by such a change in the circumstances of the parties as will make it unreasonable or unnecessary that they should be further bound, the contingency of such change of circumstances being implied ¡n the nature of the contract. Where an agreement is by its terms to continue during the lifetime of a specified person, or where no time is set for the completion of performance, and the contract is of such a personal nature that the death of
the promisor
would terminate it, the statute does not apply. In other words, a contract is not within the statute when a death occurring within a year will constitute a full performance.”
Accordingly it has been held in this state that a verbal agreement by a railroad company “-to issue” quoting the syllabus in Ry. Co., v. Wood, 88 Tex. 191, 30 S.
W.
859, 28 L. R. A. 526, “once a year for 10 years an annual pass to a person and his family, and to stop its trains during that time at his house, was not an agreement not to be performed within a year, within the statute of frauds, since it wag to he performed within' a year upon the contingency of the death of such person and his family within that time.”
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WILLSON, O. J.
(after stating the facts as above). On the theory that it appeared from the testimony that the claim sued.upon was first presented to and rejected by him as administrator July 10, 1922, appellant insists the trial coprt erred when he overruled his (appellant’s) plea in abatement, and refused to dismiss the suit on the ground that it was not commenced within 90 days from that date. The contention is predicated on a statute (article 3449, Vernon’s Statutes) as follows:
“When a claim for money against an estate has been rejected by the executor or administrator, either in whole or in part, the owner of such claim may, within 90 days after such rejection, and not thereafter, bring a suit against the executor or administrator for the establishment thereof in any court having jurisdiction of the same.”
It appeared from an exhibit, made a part of the plea in abatement, that at the time the claim was rejected July 10, 1922, it was not otherwise proven than by the affidavit of appellee that it was “true and correct [quoting] and all credits to which the same is entitled have been given.” Appellee insists that such proof was not sufficient, and that appellant therefore was bound .to reject the claim without respect to whether it was a meritorious one or not, and that, because appellant was so bound, his rejection of the claim at the time stated did not have the effect claimed for it.
We think appellee’s .contention must be sustained. By the terms of the statute (article 3439, Vernon’s Statutes) appellant was without power to allow the claim unless it was “accompanied [quoting] by an affidavit in writing that the claim is just and that all legal offsets, payments and credits known to affiant have been allowed.” In Walters v. Prestidge, 30 Tex. 65, the affidavit was that the claim was “correct and just [quoting] after allowing all proper credits.” The words used were held not to be the equivalent of those used in the statute, and a right in the plaintiff to maintain a suit on the claim was therefore denied. It will be noted that the, defects in the affidavit in the instant case are practically the same as were those in the Walters Case. In Hooks v. Martin (Tex. Civ. App.) 229 S. W. 592, as here, the affidavit to the claim when it was first rejected by the administrator was fatally defective, and, as here, the claim was later again presented to and rejected by him. In
that case, as in this one, the suit was com-ihenced within 90 days after the claim was last rejected, but more than 90 days after it was first rejected. The claim was not being verified as required by law when, it was first presented to the administrator. It was held that his rejection of it “did not set in motion the statute of 90 days’ limitation.”
After the witness Evans had testified that he had conversations with Herman Parsons, the first probably about 1912, with reference to appellee’s paying the premiums, it appears from a bill of exceptions that he was permitted to testify, further, over appellant’s objection, as follows: i
“The substance of it [the conversation with Herman Parsons] was that, if Fannie Parsons would pay the premiums on that policy she could be protected in the policy and have her money out when the policy was collected; all the premiums as she paid that she would have first lien on the policy for what she had paid in and I instructed them how, in order to protect her, it should be done; that it was necessary for that policy to be indorsed to her as her interest might appear.”
The ground of the objection was that the testimony tended to prove a contract within the statute of frauds, in that it was not in writing and was “not to he performed within the space of one year” from the time it was made. Article 3965, subd. 5, Vernon’s Statutes.
It is not very clear, from the way the matter is presented in afipellant’s brief, whether his contention here that the court erred in overruling his objection is on the theory that the testimony tended to show that the contract was entered into more, than a year prior to the time any premiums would become due and payable on the policy, or on the theory that it tended to show that more than a year must uecessarily elapse before any other than one premium could become due on the policy. But we think there was no merit in the objection on either theory. It appeared from other testimony before the court that a premium on the policy became due and payable April 12, 1913, and that one became due and payable thereon on the same day each year thereafter during the lifetime of the insured. ■ The testimony of Evans was that the first of the conversations he referred to was “probably about 1912,” If that testimony “tended” to prove that the contract between the parties was entered into more than a year before April 12, 1913, when the premium first paid by appellee became due, it certainly did not prove' it, and we think it must, if believed, to render it inadmissabie on the ground urged against it. Adair v. Stallings (Tex. Civ. App.) 165 S. W. 140.
As to the other theory, a rule applicable is. that— . '
“An agreement which may or may not be performed within a year, is not required by the statute of frauds to be in writing; it must appear from the ' agreement itself that it is not to be performed within a year.” Thouvenin v. Lea, 26 Tex. 612.
And other rules applicable are stated as follows in 27 C. J. 182:
“Oral agreements to continue to do some particular act until the happening of a certain contingency, such as the termination of a specified existing state of affairs, are valid if the contingency is one which may happen within the year, although it is possible that it may not happen within that time. An oral agreement to continue to do some particular act for an indefinite period of time is not within the statute, where it may be determined by such a change in the circumstances of the parties as will make it unreasonable or unnecessary that they should be further bound, the contingency of such change of circumstances being implied ¡n the nature of the contract. Where an agreement is by its terms to continue during the lifetime of a specified person, or where no time is set for the completion of performance, and the contract is of such a personal nature that the death of
the promisor
would terminate it, the statute does not apply. In other words, a contract is not within the statute when a death occurring within a year will constitute a full performance.”
Accordingly it has been held in this state that a verbal agreement by a railroad company “-to issue” quoting the syllabus in Ry. Co., v. Wood, 88 Tex. 191, 30 S.
W.
859, 28 L. R. A. 526, “once a year for 10 years an annual pass to a person and his family, and to stop its trains during that time at his house, was not an agreement not to be performed within a year, within the statute of frauds, since it wag to he performed within' a year upon the contingency of the death of such person and his family within that time.”
Certainly in the instant case it cannot be said that the testimony objected to showed that the contract was not performable within ' a year from the time it was made, upon the .contingency of the death of the insured before another premium than the one payable April ,12, 1913, became- due, or the contingency of appellee’s .death after she paid said premium due April 12, 1913, and before another premium became payable. If other authority than that cited above is needed as a support for the conclusion reached, it will be found in Taylor v Deseve, 81 Tex. 246, 16 S. W. 1008; Tipton v. Tipton, 55 Tex. Civ. App. 192, 118 S. W. 842; Warner v. Ry. Co., 164 U. S. 418, 17 S. Ct. 147, 41 L. Ed. 495; and Railway Co. v. Whitley, 54 Ark. 199, 15 S. W. 465, 11 L. R. A. 621.
Another contention by appellant is that a cause of action at once arose in ap-
pellee’s favor when and as she paid the annual premiums, and therefore that her right to recover on account of payments made by her more than two years before December 2, 1922, when she commenced her suit, was barred by the 2 years’ statute of limitations. But the contract as found by the jury was that she was to be repaid the money she paid on account of the premiums “out of any money that might be realized on said policy.” If that did not mean that she was to be paid when and not before the policy was collected, then the judgment involves a finding by the court to that effect, for as we construe the testimony it warranted such a finding. Article 19S5, Vernon’s Statutes. If that was the contract, then a cause of action in appel-lee’s favor did not arise until appellant as administrator collected the amount due on the policy, and he did that within two years before the time the suit was commenced. Stacy v. Parker, 63 Tex. Civ. App. 129, 132 S. W. 532, cited by appellant as supporting his contention that a cause of action in appellee’s favor arose at once when she paid one of the premiums, as we understand it is not at all like this case on its facts, and is of no value in determining the question presented.
Appellant vigorously insists that there was no evidence of an agreement on the part of his intestate to pay interest on the sums paid by appellee on account of the policy, and that the judgment therefore is wrong so far as it awarded appellee a recovery of such interest. It is true there was no direct evidence of such an undertaking by the intestate, but we think the circumstances of the case as shown by testimony justified an inference that he so agreed, Ry. Co. v. Moss (Tex. Civ. App.) 203 S. W. 777; Cotton v. Cooper (Tex. Civ. App.) 160 S. W. 597; Conner v. State, 34 Tex. 659; 23 C. J. 18. Of course neither of the parties to the contract could have known at the time they entered into it how long it would be before the policy would be collected, for that depended upon how long the insured lived. In view of that fact and the absence, as was the case, of anything in the testimony indicating an intent on appellee’s part to furnish, free of any charge therefor, the money necessary to pay the premiums, we think it was not reasonable to believe that the parties contemplated when they entered into the contract that appellee should not be compensated for the loss to her of the use of the money for such an indefinite time, and therefore that it was a reasonable inference that they contemplated she should be paid interest on the money during the time she was deprived of its use.
Other contentions are presented in appellant’s brief, but we think they also are without merit.
The judgment is affirmed.