Puckett v. McCall

Citations

• 30 Tex. 457

Syllabus

<p>The first clause of the 49th section of the act of 28th March, 1848, about estates, reads as follows: “No executor or administrator shall allow any claim for money against his testator or intestate, nor shall any chief justice approve of any such allowance, unless such claim is accompanied by an affidavit in writing that the claim is just, and that all legal offsets, payments, and credits, known to the affiant, have been allowed.” (Paschal’s Dig., Art. 1309, Note 483.) This section applies to claims held by the administrator and allowed by the chief justice under article 1394 of Paschal’s Digest.</p> <p>The 133d section of said act provides for the allowance of claims in favor of administrators and the mode of adjudicating them. (Paschal’s Dig., Art. 1395, Note 525.) This article dispenses with the necessity of the allowance of his own claim by the administrator, but not with the affidavit required by article 1309.</p> <p>Where the probate court had allowed a claim in favor of an administrator under article 1394, and entered such allowance upon the minutes of his court, it became a quasi judgment, from which any creditor, whose claim had been allowed and approved, may prosecute a certiorari to the district court for the revision of such judgment, and where the district court affirmed such action of the probate court, this court reversed the judgment for want of such affidavit.</p> <p>Likdsay, J., dissented, and insisted that the affidavit was not necessary, and that the certiorari was not the proper remedy.</p>