
    Case 47 — PETITION EQUITY
    March 10.
    Jett’s Executrix v. Cockrill’s Executrix.
    APPEAL FROM ESTILL CIRCUIT COURT.
    N 0 INTEREST ACCRUING ON A CLAIM AFTER THE DEATH OF THE DEBTOR can be allowed, unless the claim is verified as required by law, and payment demanded of the personal representative within one year after his appointment; and the personal representative, by merely making a payment on the claim before it is .verified, does not waive his right to require, as a condition precedent to the recovery of interest accruing after the debtor’s death, that the claim be verified, and the payment of the balance due thereon demanded within a year from the time of his qualification.
    C. E. and A. R. BUEN AM for appellant.
    1. As the verification and demand were made within twelve months after suit might first have been brought (Gen. Stats., chap. 39, sec. 23), the plaintiff should be allowed to recover interest.
    2. The executrix waived verification and demand, by making a payment on the debt. (Oroninger v. Marthen, 7 Ky. Law Eep.)
    
      3. As this was an action to enforce a lien on land, a mere incident to the debt, verification and demand were not necessary to entitle the plaintiff to the relief sought.
    RIDDELL and ELUTY por appellee.
    The payment on the note was not a waiver of verification and demand. There was no promise by the executrix to pay, and the heirs as well as the executrix are affected by the judgment. Eor these reasons the case of Oroninger v. Marthen (7 Ky. Law Rep.) does not apply.
   JUDGE BENNETT

delivered the opinion op the court.

Section 53 of article 2, chapter 39 of the General Statutes provides, that “no interest accruing after his death shall be allowed or paid on any claim against a decedent’s estate, unless the claim be verified and authenticated as required by law, and demanded of the executor, administrator or curator within one year after his appointment.”

E. L. Cockrill having died testate in Estill county, his will was admitted to probate by the county court ■of that county, and the appellee was qualified as executrix thereof on the 23 st day of November, 1876.

Curtis Jett, who was alive at the time of the appellee’s qualification as executor, and continued to live for several months 'thereafter, did not verify the note, which he held on the appellee’s testator, as required by law, nor did his executrix, after her qualification, demand the payment of said note, accompanied with the verification required by law, until the 12th of March, 1878, more than one year from the time of appellee’s qualification and appointment.

The statute supra is peremptory that no interest accruing after the death of a person, upon any claim against his estate, shall be allowed or paid, unless the claim shall be verified and authenticated as required by law, and payment thereof demanded of his executor, administrator or curator, within one year after the appointment of the executor, administrator or curator. But notwithstanding this provision of the statute, if the executor, administrator or curator is the only person who will be affected by allowing the prohibited interest, he may waive his right to the protection of the statute, by agreeing with the creditor of the estate to pay his debt in full, in consideration of his postponing the collection of his demand, so as to enable him, the representative, to pay the debt without sacrificing the estate by a forced sale. (Croninger, &c., v. Marthen, 83 Ky., 662.)

There is no contention in this case that appellant and appellee ever made any such agreement.

Appellee, after she qualified as executrix, and before the note was verified as required by law, paid five hundred dollars on it. If she knew the debt was just and could be verified as required by law, then she had the right to make the payment on it, and she certainly waived no right to have the claim verified, and the payment of the balance due thereon demanded within a year from the time of her qualification. ■

The distinction between this case and that of Croninger v. Marthen is plain. In that case the creditor postponed taking any steps toward collecting his debt or perfecting his right to collect interest on it, by the request of the executor, and his express promise that his debt should be paid in full. In view of these facts, together with the further fact that the executor was the only person to be affected by the payment of the interest, this court held that he waived his right to rely upon the statute. But in this case nothing of the kind occurred. The appellee simply, in advance of the verification of the debt and demand of its payment, paid five hundred dollars thereon. This was certainly not a waiver of her right under the statute to refuse to pay interest because the debt was not proved and payment thereof demanded within a year after her qualification.

The judgment of the lower court is affirmed.  