In his motion for rehearing the appellant, through his counsel, stresses his contention that the affidavit upon which the conviction is based is not in compliance with the statute, either in form or in substance. The statute, article 3415, R. S., 1925, reads thus:
"No executor or administrator shall allow claim for money against his testator or intestate, nor shall the county judge approve the same, unless such claim is accompanied by an affidavit that the claim is just and that all legal offsets, payments and credits known to affiant have been allowed. Such affidavit, if made by any other person than the owner of the claim, shall state further that the affiant is cognizant of the facts contained in his affidavit."
The affidavit reads as follows:
"BEFORE ME, the undersigned authority, on this day personally appeared Leo H. Weadock, who being by me first duly sworn, states on oath that the above and foregoing account is a true and correct, and that all just and legal offsets, payments and credits have been allowed."
Appellant contends that the difference in the verbiage characterizes the affidavit as void. Several precedents are cited, namely, Strickland v. Sandmeyer, 21 Texas Civ. App. 351[21 Tex. Civ. App. 351], 52 S.W. 87; Whitmire v. Powell (Texas Civ. App.), 117 S.W. 433. It is thought that the case of Strickland v. Sandmeyer, supra, does not warrant the conclusion that the affidavit omitting the word "just" is void. Sandmeyer was the administrator of the estate of Mary Jane Gordon, deceased. Strickland was an administrator de bonis non, and as such filed a claim against the estate of Sandmeyer, and on the claim sued Sandmeyer's administrator *Page 544 and bondsmen. The sole question, according to the court's decision, was whether Strickland had the legal status of administrator de bonis non. The trial court held the contrary. The appellate court held that the appointment of Strickland was not open to a collateral attack and reversed the judgment. Strickland had filed an account and affidavit which omitted the words "the claim is just, and that all legal offsets, payments, and credits known to affiant have been allowed." The appellate court said that the affidavit was insufficient, but that Strickland's right as administrator de bonis non to sue the bondsmen of his predecessor did not require a verified account. No decision concerning the validity of the affidavit was necessary to the decision of the case.
The case of Whitmire v. Powell, supra, was a suit upon a claim rejected by the administrator in which there was an absence of a pleading showing that any affidavit had been made. The relevance of the case is not perceived.
It has been held in many cases that a claim against an estate could not be legally rejected on account of the form of the affidavit, provided its effect was to convey the same meaning as the affidavit prescribed by statute. See Crosby v. McWillie Moreland, 11 Tex. 94. Other Texas cases declaring that a substantial compliance with the statutory language is sufficient are Gaston v. McKnight, 43 Tex. 619; Cannon v. McDaniel, 46 Tex. 309.
Following the brief of appellant's counsel, we have so far considered the affidavit in its relation to civil cases. In such cases the inhibition against the allowance or payment of a claim not authenticated in the manner prescribed by statute is not absolute. The Supreme Court of this state has often held that the administrator was entitled to credit for money paid upon a claim not properly authenticated or not authenticated at all. See Hanlon v. Wheeler, 45 S.W. 821; Wessendorff v. Aylor,5 S.W.2d 793; Trammell v. Blackburn, 116 Tex. 388; Parsons v. Parson (Texas Civ. App.), 275 S.W. 200; Scott v. Taylor (Texas Civ. App.), 294 S.W. 227.
In a trial for perjury it has been said that defects in an oath or affidavit, not jurisdictional, which have been waived by the parties, are not fatal to the conviction. See Manning v. State, 46 Tex.Crim. Rep., citing Bishop's Cr. Law, 5th Ed., 1028; also secs. 842, 850; 1 Bishop Cr. Proc., 112, 118. It has also been said that a false affidavit may warrant a conviction of perjury though the affidavit be defective. Corpus Juris, vol. 48, p. 846, sec. 59; Meyers v. United States,5 Okla. 173; Arnold v. State, 132 P. 1123; Clay v. State,52 Tex. Crim. 555. In Wharton's Cr. Law, 11th Ed., vol. 2, p. 1681, sec. 1522, it is said:
"Where the court has jurisdiction of the subject-matter of inquiry, it is not necessary that the proceeding should be strictly regular. But if *Page 545 from want of some essential condition (e. g., an issue) no jurisdiction attached, perjury cannot be manintained."
In Manning's case, supra, a false oath was made in answer to written interrogatories in a deposition. There had been no commission issued to the officer who took the depositions. In affirming the case, the court adopted as its opinion the brief of the attorney general, from which the following quotation is taken:
"The correct rule seems to be that if the court has jurisdiction of the subject matter of the suit and the oath is required by law, irregularities in the proceeding will not prevent perjury."
Among the cases cited is Maynard v. People, 135 Ill. 416, upon which the opinion in the Manning case comments in the following language:
"In the Maynard case, the Supreme Court of Illinois says: 'We understand the doctrine to be that although a tribunal must have jurisdiction of the cause of proceeding before perjury can be committed therein, yet that where the defect renders the proceeding voidable only and not absolutely void, and such proceeding is amendable, or where the defect has been waived by the parties there may be perjury committed. Bishop Cr. Law, 5 ed., 1028, and authorities cited in notes. So also one may, if he will, and under some circumstances, waive even a right which the Constitution secures to him. Bishop Cr. Law, secs. 842, 850; 1 Bishop Cr. Proc., 112, 118. In the proceedings here involved plaintiff in error elected to waive the right to quash the process or dismiss the complaint and to go to a hearing upon the merits and introduced testimony. If such conduct left the record destitute of an essential part, it perhaps did not estop him from afterwards taking advantage of the defect in it in case of conviction therein, but at the same time it should be considered as a waiver of any right to claim that perjury could not be assigned upon false testimony given by him upon such hearing.' "
In the present instance, the affidavit was filed in the probate court having jurisdiction of the estate. The affidavit was treated by the probate court and the administrator as proper authentication of the claim, and favorable action thereon inured to the benefit of the accused. The approval in the court having jurisdiction of the estate implies that the authentication of the claim was regarded as substantial compliance with the statutory requirements. Apparently it would be difficult to demonstrate that in reaching such conclusion there was error. To the mind of the writer, the distinction between the assertion that the claim is "just" and the assertion that the "attached account is true and correct andthat all "just" and legal offsets, payments and credits havebeen allowed," is not apparent. To declare the authentication invalid would be to turn aside from the often-declared rule, that in such matters the law looks to *Page 546 the substance and not to the form, and to cling to the letter rather than to the effect of the language.
It was essential that there be adequate evidence that the appellant swore to the affidavit. The appellant contends that in the particular mentioned the record is insufficient. Frances Lawrence, the notary public before whom the oath was made, testified that she saw Mr. Weadock sign the affidavit and that she remembered that he made the affidavit. The following statement is regarded as sound:
"To constitute a valid oath, for the falsity of which perjury will lie, there must be, in the presence of a person authorized to administer it, an unequivocal act by which affiant consciously takes upon himself the obligation of an oath." 30 Cyc., 1416.
If the testimony of the officer before whom the affidavit is charged to have been made is true, the appellant, in the presence of said officer, signed the affidavit, and in answer to an inquiry as to whether he swore to it, gave his affirmative assent by stating, "Yes" or "I do." It appears from his own testimony that he was present and took charge of the affidavit and used it for his own benefit, though he denies that he stated that he swore to it or that he was asked any questions upon that subject. The conflict in the evidence was a question for the jury which was submitted to them. The appellant sought to have the jury instructed in effect that unless the notary public repeated the words in the affidavit in the presence of the appellant and embraced the words in the affidavit in the oath, that there should be an acquittal. The court declined to give that charge but instructed the jury that if the affidavit was not sworn to, or if upon that subject they had a reasonable doubt, there should be an acquittal. The testimony of Miss Lawrence, if believed by the jury, is deemed adequate to comply with the law with reference to the administration of the oath to the appellant, and the details called for in the special charge requested by the appellant are not regarded as necessary to the validity of the oath to the affidavit. The indictment sets out the account and the affidavit avers that the oath was duly administered to the appellant by Frances Lawrence. It has been held a sufficient averment that the accused is duly sworn before some officer authorized by law. See Massie v. State, 5 Texas App., 81; Beach v. State, 32 Tex.Crim. Rep.; Stewart v. State, 6 Texas App., 184. In the brief for the state are cited a number of cases combatting the idea that the formalities in the administration of the oath for which the appellant contends are necessary. They are as follows: Atwood v. State, 146 Miss. 662,111 So. 865, 51 A. L. R., 836; State v. Mace,86 N.C. 668; State v. Day, 108 Minn. 121, 121 N.W. 611; State v. Rupp, 151 P. 1111; State v. Madigan, 59 N.W. 490; State v. Miller, 141 P. 293; Komp v. State, 108 N.W. 46; Peoples v. Ostrander, 19 N.Y. Sup., 324, 64 Hun., 335. If we comprehend the averments in the *Page 547 indictment, they are sufficient to show the materiality of the alleged false statement. The account accompanies the statement. The indictment categorically shows that items of the account are fictitious, and the affidavit that they are genuine is false. The indictment avers that the appellant swore that the item of $360 was for a casket furnished for the burial of Collins and the item of $35 was for a suit of clothes in which Collins was buried by the appellant. In the indictment it is stated that the appellant did not furnish a casket or suit of clothes but that Collins was buried naked in a cheap box.
The motion for rehearing is overruled.
Overruled.