Belle Langrell vs. James D. Wright, administrator of George W. Moore, deceased.
Executors and Administrators — Claims Against Decedent’s Estate — Actions — Probated Account.
One suing a decedent’s estate for personal services rendered decedent in his lifetime must produce the affidavit that the claim is just and nothing has been paid thereon, required by Rev. Code. 1852, amended to 1893, p. 677, c. 89, § 29.
(April 26, 1911.)
Pennewill, C. J., and Rice, J., sitting.
Richard R. Kenney for plaintiff.
Franklin Brockson and Arley B. Magee for defendant.
Superior Court, Kent County
April Term, 1911.
Action of Assumpsit by Belle *312Langrell against James D. Wright, administrator of George W. Moore, deceased, for services rendered the deceased during his lifetime by the plaintiff.
*311(No. 1
October Term, 1909)
*312(See case for alleged insufficiency of bill of particulars filed, 1 Boyce 219, 77 Ail. 772.)
At the trial, after the plaintiff had proved the nature and value of the services rendered and closed her testimony, the defendant moved for a nonsuit on the ground that the plaintiff had failed to produce the probated account covering the services sued for, as required by § 29, c. 89, p. 677, Revised Code. The plaintiff admitted that such production had not been made.
Pennewill, C. J.
delivering the opinion of the court:
The statute seems to be plain upon this question. Section 29, of chapter 89 of the Revised Code, at page 677, provides:
“Before an executor, or administrator, shall pay any debt against the deceased, the person holding the same shall make affidavit that nothing has been paid or delivered towards satisfaction of said debt, except what is mentioned, and that the sum demanded is justly and truly due.”
Later in the section there is this provision: “If affidavit, as above required, be not produced in an action against an executor or administrator, for a debt against the deceased, the plaintiff shall, upon motion, be nonsuited; and if such action shall have been brought, without previously exhibiting to the defendant an affidavit in due form, the plaintiff shall not recover any costs,” etc.
The probated account not having been produced as required by the statute, let a nonsuit be entered.