
    ANDERSON’S ADMINISTRATOR vs. BIRDSALL’S ADMINISTRATRIX.
    WlSTEMi Dis.
    
      September,1841.
    Í.PPEAX EBOK THE COUBT OP PBOBATES FOB THE ¿AítlSH OF ST. HABÍ'.
    An appeal will not Re dismissed, for want of citation of appeal, When it was caused by the fault of the appellee.
    It is no ground for a continuance that a witness is insane, and time is aáked^ that he may recover, and his deposition be taken; especially when it is not shown he would be able to testify in a reasonable time.
    When the answer sets up no speciál contract, a continuance need not be allowed for the party to procure the testimony of a witness, as it is Unimportant to the defence to prove one.
    Where a petson has treated with a minor, he cannot plead the nullity of the agreement, when sought to be enforced after the disability has ceased.
    Where a claim against an estate is unliquidated, or the eurator objects and refuses to approve it, the party may Sue on it in the Court of Prohatesbut he cannot have execution immediately, as it must be paid concurrently with other creditors.
    Claims against estates in the course of administration, bear legal interest from the time they are due and payable, although unliquidated.
    The administrator of W. F. Anderson, deceased, claims the sum of $3000, from the defendant, Emily A. Birdsall, as ad* ministratrix of the estate of her deceased husband, F. G. Birdsall; being for the wages of W. F. Anderson, as a clerk in the store of F. G. & J. B. Birdsall, for three years, and up to the time of his death, in September, 1839. He prays judgment against the estate administered by the defendants and also against J. B. Birdsall the surviving partner.
    The defendants excepted to the action, as against the sue* cession of a deceased partner, and the survivor in the Probate Court; especially as the demand was against a mercantile firm. It was dismissed as to J. B. Birdsall.
    The administratrix pleaded the general issue: and averred that no recovery could be had, as the deceased, W. F. Anderson, was a minor when he engaged himself as a clerk, and when the services were rendered, and that his parents alone could legally claim them; and finally, &hat the services were not worth what was claimed, &c.
    Upon these pleadings and issues the cause Was tried. The-questions of law raised in the course of the trial are fully stated ^ opinion of this court.
    From the testimony adduced, the Judge of Probates was °piniorL the plaintiff’s demand was shown to be worth in -the aggregate $1260, from which a credit of $674 76 was to be deducted, leaving a balance of $585 25, for which judgment was rendered. The defendant appealed.
    
      .Splane, for the plaintiff.
    
      Dwight & Gibbons, for the defendant.
   Bullard, J.

delivered the opinion of the court.

The administrator of the estate of W. F. Anderson instituted the present suit against the administratrix of the estate of F. G. Birdsall, deceased, and against James B. Birdsall, surviving partner, to recover the value of his intestate’s services as clerk of the firm for three years previous to his death, which he fixes at three thousand dollars.

James B. Birdsall excepted to the jurisdiction of the Court of Probates ; his plea was properly sustained, and the suit dismissed as to him.

The other defendant, after setting up some exceptions as to the propriety of the plaintiff’s appointment to administer on the estate of Anderson, which seems to have been disregarded by the court, finally answered by denying the allegations in the plaintiff’s petition. She further denies the right of the administrator, to recover the wages of the deceased, most of which were earned while he was a minor, he having died at the age of twenty-two years. She further denies, that his services were worth the amount claimed, and avers that he received in his lifetime the full amount duo him. She further excepts, that the claim never was presented to her before bringing suit, as the law requires.

After the suit had been discontinued as to the surviving partner, Henry C. Dwight, who, it appears, had purchased his interest in the concern, and became liable for his share of the debts, came forward with a petition of intervention, setting' forth these facts, and offers to sustain the defendant in her de-fence. As he asks no judgment in his own favor, and no judg- , - , , , , . ment was pronounced as to him, and he is not a party to this appeal, no further notice of his intervention is required.

An appeal misled4 *for 'wimt oi cltat>on oi appeal, when it caused by the fault of the appellee.

T. . ground for a that a witness tim^is^askeif, 11(5 cover, and his deposition he it *youldSbeWabie *° time.

The court having pronounced a judgment against the ad-ministratrix for a balance due to the deceased, she appealed. The judgment was rendered on the 17th of August, 1840, too late to prosecute an appeal to the August term of this court for that year, and the appeal was made returnable at the present term. The appellee however brought up the transcript last year together with the petition of appeal and the bond, having waived all formalities ; but the court refused to try it before the proper return day. The appellee, now moves to dismiss the appeal on the ground, first, that it was not made returnable to the proper time ; and secondly, that no citation has been served. We cannot grant his motion. We have already expressed our opinion, that the .appeal was properly made returnable at the present term, and it is manifestly the r J fault of the appellee, that no citation issued, as he had taken . “ ..... the transcript out of the ónice, and waived citation.

The appellant calls our attention to a bill of exceptions, upon which he relies to show, that a postponement of the trial was improperly refused. The ground for the continuance was, that a commission, issued to take the deposition of J. B. Birdsall, could not be executed, because he was insane, but was expected to recover shortly, and the postponement was asked for a period not exceeding one year. The affidavit sets forth, that the dei fendant expects to prove by the absent witness a special contract for wages at the rate of $121; per month for the first ° r J and $20 for the second and third, with board, washing and lodging; and that he had been fully paid. The court ruled the motion on the ground, that the witness was interested, being a former partner; and originally a party to this suit. The court, in our opinion, did not err in refusing the continu-anee, although he may not have given the best reason for it. rjij^ ansW¿r ¿oes not set up a special contract with young An-deison, and consequently it was not important to the defence to x , prove one. The affidavit does not show a probability, that Birdsajl, the absent witness, would be in' a situation to testify within a-reasonable time.

Where the answer sets up no special contract, a continu-beCallow®d for procurelty the ívitúess” as°ft is unimportant to the defence to prove one¡

Where a person has treated with a no^plead °the nullity of the ai?r<3 e ml q n t when sought to te ^^disabi-litylms ceased,

Where a claim against liquidated'5 "or jectse'a'nd°refu" ses to approve It, the party may sue on it pi-ohate™111 but execution mediately, as it must be paid concurrently dítors?tlier °re

against estates in tiie course of administration, bear legal the time they payaMe ? althcR unliquidated.

That part of the defence, which sets up the minority of young Anderson as a ground for not paying him or his administrator, cannot avail the defendant. Having treated with ^ mino1' himself, she cannot plead the nullity of the agreement> when sought to be enforced, after the disability has ceased; La. Code, 1785. It does not appear, that the father or any other person standing in loco pafentis, intervened in the contract, much less has set up1 any claim to the wages due tt. j...;...,] t0 me aeceasecl-

-Another exception remains to be disposed of, to wit: that this claim was not first presented to the administrator for his admission. Article 984 of the Code of Practice, it is true, provides, that no bearer of a claim for money against a succession administered by a curator, executor or administrator, shall . . commence an action against such succession, before presenting piaim to the curator. But we understand this provision to aPPty to liquidated claims only ; for a subsequent article declares, that if the claim be not liquidated, or if the curator, , . . , , , . &c., have any objection to if, and subsequently refuse to approve it', the hearer of the evidence of such claim may bring in tlle ordinary manner before the Court of Probates,” &c. Art. 986. In the present case the claim is unliquidated, and . , consequently the exception cannot avail the defendant. But ü does not follow^ that the plaintiff will be entitled to an execu-^on at once ’ ^or ^16 claim can only be paid in concurrence with the other creditors. Arts. 987, 1053 et seq. •

. Upon the merits, the judgment does not appear to us so unsupported by evidence as to justify our interference. We are not satisfled, that injustice %as been done the defendant,

Interest \vas properly allowed at five per cent, from the death of the defendant's intestate; it not being shown, that the estate was insufficient, and we are to presume it solvent. Code of Practice, 989.

It is therefore ordered and decreed, that the judgment of the Court of Probates be affirmed with costs.  