There is nothing in the statute requiring that a claim must be presented to executors, and a refusal to refer made during the publication of the notice to creditors, to entitle a plaintiff to costs.
Claims may be presented at any time after the executors qualify and enter upon the discharge of their duties, and while they are entitled to a reasonable time to examine and decide upon the justice of claims presented, when they do decide, even though no notice has been published, the effect of their decision is the same as though the claim was presented after publication. The notice is for the protection of executors, and the estates which they represent, and there is no absolute legal obligation to give it at all. (Bullock v. Bogardus, 1 Den., 276; Russell v.Lane, 1 Barb., 519.)
It is contended that there was no offer to refer, by the plaintiff. This is a question of fact upon the affidavits presented, and the general rule acted upon by this court, is to adopt the finding of the court below upon such a question, although we may pass upon it as an original question in this class of appeals.
I have examined the affidavits in behalf of the respective parties, and agree with the court below that an offer to refer was made and rejected. The plaintiff's attorney swears positively that he requested the defendant to refer the claim, and that the latter refused to refer it or settle it in any manner.
The defendant swears that he does not recollect the request to refer, and did not understand such a proceeding, and did not intend to refuse. This scarcely raises a conflict of evidence.
The criticism that a request to refer is not equivalent to an offer, is not tenable. *Page 297
The claim for which a recovery was finally had was substantially the same as that originally presented. It consisted principally of charges for board, care, nursing, etc., of the testatrix for many years, prior to her death. An item for the undertaker's bill was withdrawn during the litigation, and an item for a physician's bill was rejected, but these constituted but a small portion of the amount of the claim, which was rejected by the defendant. The circumstance that the plaintiff was allowed to prove and recover a larger compensation for the services performed, and to amend his complaint, claiming a larger recovery therefor, did not change the claim from that originally presented, and the fact that the plaintiff recovered upon the last trial after deducting the second mortgage of $2,000, which this court decided should be done, nearly as large a sum as upon the first trial, tends to show that the defendant ought to have adjusted the original claim, but upon this appeal we have no concern with, and no knowledge respecting the justice of the recovery.
The order should be affirmed.
All concur.
Order affirmed.