delivered the opinion of the court.
The defendant, sued on an unliquidated claim against the estate, pleaded the general issue, and that the amount sued on was presented to her according to law; but that another was presented to her, on which she admitted such of the items, as appeared to her correct and declared her willingness to allow the others if they were proven.
TheplaintifF had judgment for part of his claim, but was decreed to pay costs. He appealed.
Our attention has been first drawn to a bill of exceptions taken by the defendant to the admission of the plaintiff’s father-in-law, as a witness for him. There was a difference of sentiments on this question between one of the members of this court and the others, but we are all satisfied that the law on this head may be considered as settled by the case of Bernard et al. vs. Viguaud. 10 Martin, 554.
On the merits we think the Court of Probates correctly rejected the items in the account, which it rejected.
But we think it erred in sustaining the defendant’s pretentions on the score of costs. The Code of Practice, 984, requires indeed the presentation of an unliquidated claim to the administrator of an estate before suit be brought thereon, but we are ignorant of any law requiring proof or evidence to be produced to him. This, in many cases, would *75be impossible; in others difficult. The witnesses may reside at a distance, and even out of the state; or if more, may refuse to come. If the administrator be not satisfied with the correctness of the claim, nothing prevents his objecting thereto or refusing his approval. If he does, the party may bring suit. 1 Martin, 986.
The 984th article •of the Code of Practice, which requires all unli«quidated claims against an estate to be first presented to the administrator before suit is •brought, does not require preof or evidence to be ¡produced to him.It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and proceeding to give such a judgment as in our opininion ought to have been given below; it is ordered, adjudged and decreed, that the plaintiff recover from the defendants one hundred and forty-five dollars and forty-three cents, with interest at the rate of five per cent, per annum on sixty-five dollars and eighteen cents, from the I8th January, 1833, and on eighty dollars and twenty-five cents, from the date of this judgment, the whole to be paid in the due .course of the administration of the estate, with costs in both courts.