Warren

Action to recover money due from an estate. The complaint avers, in substance, that Thomas Hovenden was indebted to the plaintiff in the sum of six thousand eight hundred and twenty-eight dollars and six cents, and died leaving a will in which the defend *154 ant, McGill, was named as executor; that the will was admitted to probate, and letters testamentary were issued to defendant, who duly qualified and entered upon the discharge of his duties as executor; that notice to creditors to present their claims was published, and thereafter, within the time prescribed, the claim of plaintiff) a copy of which is attached to the complaint, verified by the oath of the claimant, was duly presented to the defendant as such executor for allowance, and was by him rejected.

The answer denies the indebtedness, denies that the claim on which the action is founded was duly presented to defendant for allowance, and avers that no claim for the alleged indebtedness was ever presented to defendant as such executor, “in manner or form as required by the statute of this state in such case made and provided.” The case was tried by the court, and the findings were, in effect, that the plaintiff was…