No affidavit is required in cases of claims against estates not due or contingent, and a presentation of such claims to the executor before they become due or absolute is valid. (Act of 1851, concerning Estates of Deceased Persons, secs. 130, 244; Wren's Adm'r v. Spans' Adm'r, 1 How., Miss., 120; 3 Id. 216; Id. 301; 4 Id. 242; 2 Smedes & M. 403; 5 Id. 651; 10 Tex. 197; 8 Ind. 236; Stark v. Moore , 5 Ala.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
BALDWIN, Judge
A rehearing having been granted, and the case reargued, Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.
We granted a rehearing in this case at the instance of the respondent, upon the suggestion that we had fallen into a misapprehension of facts, and had omitted to consider some provisions of the statute in reference to the estates of deceased persons bearing upon the main point of the opinion.
We did not place our decision upon the ground that the agreement of Hartnell to guaranty Pico was void. As it is not necessary to pass upon this point, we omit all reference to it.
We adhere to our conclusion that the claim against the estate is invalid, because not properly presented within the time allowed by law. The first presentation was prior to the time when the debt was payable, and before the liability of the guarantor was fixed. We are referred to the two hundred and forty-fourth section of the act in relation to the estates of deceased persons. That section is in these words:
" If there is any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, or established, or absolute, shall be paid into the Court, where it shall remain to be paid over to the party when he shall become entitled thereto; or if he shall fail to establish his claim, to be paid over or distributed as the circumstances of the case require; provided, that if any creditor whose claim has been allowed, but is not yet due, shall appear and assent to a deduction therefrom of the legal interest for the time the claim has yet to run, he shall be entitled to be paid accordingly."
It has been argued that this section, taken in connection with the one hundred and thirtieth section, dispenses with the presentation of the claim accompanied by an affidavit as prescribed by the one hundred and thirty-first section, if presentation is made of the contingent claim before the same matures, or is made absolute and within the statutory period. It is true that the one hundred and thirtieth section relieves the holder of the contingent claim from any presentation of it until it shall become absolute, but the holder may wait until it becomes absolute, and then have ten months from that time within which to present it. But still such claim may be presented to the Probate Judge, by the two hundred and forty-fourth section, and although the party need not--indeed, could not--make the affidavit required by the one hundred and thirty-first section, still the effect of it might be to cause the money to which the party may be prospectively entitled to be paid into Court, etc. But this does not relieve the party from the necessity of presenting the claim to the administrator, after it becomes absolute, with the affidavit required, before the administrator is compelled to act on it. This seems to be the necessary result of the one hundred and thirty-fourth section. By this and the one hundred and thirty-second section, the allowance or rejection of the claim fixes the rights and liabilities of the estate. It is difficult to see what effect the rejection by the administrator of a mere contingent claim would have. No money is claimed--nothing is due--no right of payment or demand for recognition of the claim as a debt is asserted. A rejection would give no right of suit. When the contingency has happened which gives the creditor the right, then he may assert it; but the right under the statute is to claim that the administrator acknowledges the debt, which allowance, with the approval of the Judge, fixes the obligation upon the estate in the same manner as a judgment; or if the administrator refuses to acknowledge the debt, then the creditor has his remedy by suit, which he must bring within three months after the rejection. The claim is not constituted by the facts which raise a contingent liability, but by the facts which show that it has accrued; in other words, in this case, by the incurring of the obligation to pay a debt for the principal debtor of Stearns, at the instance of Hartnell and on his guaranty, and the actual payment of that debt. The claim thus originating and perfected must be presented to the executors of Hartnell; and an opportunity given them to allow or reject it; for the whole policy of the statute is, that no suit shall be brought against the executors until they have had an opportunity to examine the claim and pass upon it--and no presentation is effectual without an affidavit of the justice of the claim. The mere fact that they once had notice of a contingent or potential demand--that at some future time the plaintiff might have a claim against the estate of their testator--is not enough to answer the requirement. They had no opportunity to pay the claim or recognize it, nor, so far as appears, notice of its existence. The object of the two hundred and forty-fourth section is illustrated by the preceding sections, which provide for the settlement of the estate. Section two hundred and forty-three provides that upon the settlement of the accounts of the executor and administrator at the end of the year, as required in this chapter, the Court shall make an order for the payment of the debts as the circumstances of the estate shall require. If there be not sufficient funds in the hands of the executor or administrator, the Court shall specify in the decree the sum to be paid to each creditor. But it then occurred to the Legislature that the effect of this order might be to leave out the contingent claims, which, when made absolute, were or would be equally entitled to payment; and to remedy this, the two hundred and forty-fourth section was inserted, which provided for retaining in the hands of the Court the amount to which the holder of these claims would be entitled on the happening of the contingency which was to make them absolute. But this was a mere cautionary provision, not affecting, in any degree, the process by which such claims were to be authenticated and presented.
The former opinion, as herein modified, will stand as the ground of our decision.
Decree reversed, and cause remanded.