Woodruff v. Winston

BRICKELL, C. J.

The claim, or rather the statement of it, filed in the Court of Probate, taken in connection with the affidavit accompanying and verifying it, indicates very clearly the nature of the demand — an account for projDerty purchased by the intestate in Ms life, and that it was due and payable to Mooring as trustee. Whatever may be the form or evidence of claim filed in the Court of Probate, as a claim against an insolvent estate, it is sufficient, if, taken in connection with the affidavits verifying it, a prima facie existing liability to the party on whose behalf it is asserted is shown. Thornton v. Moore, 61 Ala. 347.

If the affidavit, verifying the claim, is in any respect defective, objection to it cannot be made for the first time in this court. In the Court of Probate, an insufficient or defective verification may be cured by amendment, at any time before final decree; and of the opportunity of amendment the claimant cannot be deprived, by withholding the objection until after final decree. Nor was there any objection as to the time of filing the claim made in the Court of Probate; and it is too late in this court to urge that it was not filed within the time appointed after the decree of insolvency. The objection could have been obviated in the Court of Probate, if it had been there made, by proof of the time of filing.

If the statute of limitations could be made available as a defense, it was incumbent on the contestant to show that more than six years had elapsed, after the maturity of the debt, before it was filed in the Court of Probate. That does not appear to have been shown, and the statute cannot now be invoked to support the judgment of the Court of Probate.

The controversy in the Court of Probate was limited to the existence of the liability of the intestate, asserted by the claimant. On this contest, the burden of proof was on the claimant, and of the existence of the liability the affidavit verifying the claim was not evidence. The purpose of the affidavit is not evidence to establish a disputed claim, but the prevention of the preferring simulated claims to the prejudice of hona fide creditors.—Brasher v. Lyle, 13 Ala. 524; Askew v. Weissinger, 6 Ala. 907. The evidence seems -to us to establish the claim, so far as it relates to the personal property, very satisfactorily. The fact of Reavis’ purchases of it at the sale made by the deputy-sheriff, under the superintendence of the trustee, Mooring, and at the prices stated, *417cannot be matter of doubt. That he never took actual possession of the property, is hot important. He did not intend that it should come "to his possession, but that it should remain in the possession of Mrs. McMahon, for whom be made the purchases. The indorsement made by him on the account, “ Reavis' purchases at Bell & McMahon’s sale,” was an implied admission of the correctness of the account. It would scarcely have been made, if in any respect he disputed the correctness of the account, or his liability to pay it. Positive certainty is not requisite to establish the claim — it is sufficient if the evidence, direct or circumstantial, reasonably satisfies the mind of the existence of facts constituting the indebtedness claimed.—Godbold v. Blair, 27 Ala. 592.

The evidence of Lambeth should have been excluded. A party’s own declarations, made in the absence of his adversary, cannot be converted into evidence for him. Nor can he qualify or control admissions or declarations made at one time by counter declarations made at another time. The evidence, however, if it had been admissible, as it would have been if introduced by the claimant, was in support, not in contradiction of the claim. As to the real estate, the price of which is embraced in the account, there is no objection or plea of the statute of frauds interposed; and in the absence of such objection, or plea, it is as recoverable as the prices of the personal property.

The Court of Probate erred in disallowing the claim ; and its judgment is reversed, and the cause remanded.