Valente v. Sica

PULLEN, P. J.

The question here presented has to do with the sufficiency of a creditor’s claim against the estate of a decedent. The trial court, upon conflicting evidence, has found that the claim was duly presented to the administrator of the estate of Gerardo Sica, deceased, which finding is binding upon us.

The first point urged by appellant is that the claim is insufficient in that the affidavit thereto is defective. The claim sets forth in sufficient detail items of the account, and attached to the claim is the following affidavit, duly verified:

“State of California,

“County of Napa,—ss.

“Wallace Rutherford, Attorney for V. Valente, whose foregoing claim is herewith presented to the administrator of the estate of said deceased, being duly sworn, says that the amount thereof, to-wit: The sum of Pour Thousand three hundred fifty and 31/100 Dollars is justly due to the said claimant; that no payments have been made thereon, which are not credited, and that there are no offsets to the same, to the knowledge of said affiant.

“Affiant makes this affidavit on behalf of said claimant because of his absence from the County of Napa.

“(Signed) Wallace Rutheefobd.”

Appellant contends as a ground of insufficiency that this affidavit is not made by the claimant but by a third person, and the reason the same is not made by claimant personally is insufficient.

Section 1494 of the Code of Civil Procedure in effect at the time the claim was verified, the provisions of which are now found in section 705 of the Probate Code, is as follows: “Every claim which is due, when filed or presented must be

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supported by the affidavit of the claimant or someone in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. . . . When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason therefor. ’ ’