67 Ala. 432 | Ala. | 1880
— It has been repeatedly decided by this court, that mere knowledge of the existence of a claim, on the part of an executor or administrator, no matter how full and complete it may be, will not prevent the operation of the statute of non-claim, To produce this effect, the statute is mandatory in the requirement of an actual presentation, or of some act done by the creditor or claimant which is equivalent thereto ; otherwise the claim is forever barred and extinguished. — Jones v. Lightfoot, 10 Ala. 17; Br. Bank Decatur v. Hawkins, 12 Ala. 755; Code (1876) §§ 2597, 2599.
It is indispensable not only that the claim should be brought to the attention and knowledge of the executor or administrator, but this must be done by one having an interest in it and a legal right to enforce its payment, and it must be evinced by some act or word which indicates an intention to look to the estate of the deceased debtor fonr its payment, McDowell, Adm'r, v. Jones, Adm’r, 58 Ala. 25, 35; Pollard v. Secor, 28 Ala. 484.
The appellant should have been permitted to testify that the claim sued on was never presented to- him as administrator of the estate of R. J. Allen, but only as a claim against the estate of R. N. Allen. The endorsements on the note were competent evidence, and relevant as bearing on this issue.
The note sued on was barred by the statute of limitations of six years.- — (Code, 1876, § 3228). The running of the statute did not commence, by reason of its suspension, until September 21,1865, under the provisions of Ordinance No. 5, of the Convention of 1865. — (Rev. Code, 1867, p. 53.)
The six months during which the administrator was exempt from suit, after the grant of letters of administration, is not to be taken as any part of the time limited for the commencement of the action, and must be excluded. — (Code, § 3245.) It is- also provided in section 3244 of the Code, that “the time betiu'een the death of a person and the grant of letters testamentary, or of administration, (not exceeding- six months),”' is not to> be counted in the estimate. This latter section, we think, is to be construed by including' the day of the decedent’s death and excluding the day on- which letters were granted, in analogy to the construction given by this court-to the above ordinance of September 21, 1865, which excluded from such estimate “the time elapsing behueen the 11th day of January, 1864, and the passage of the ordinance:”'
From September 21, 1865, to May 27, 1872, the day whea the suit was instituted, was six years, eight months and six days. The deductions authorized to be made under the above statutes are, six years, eight months and stye days.
The action was then barred by one day, unless the proposition urged by appellee be tenable, that, in as much as the 26th day of May, 1872, was Sunday, the plaintiff had until Monday, the 27th, within which to bring suit. Section 11 of the Code (1876) is invoked to sustain this view. It reads as follows: “The time within which an act is provided by law to be done must be computed by excluding the first day and including the last; if the last is Sunday, it must also he excluded,
The statute, we think, was intended merely as a re-affirmation of the common law rule, that, while Sundays are generally to be computed in the time allowed for the performance of an act, if the last day happens to be Sunday, it is excluded, and the act must be performed on the day previous (Saturday.) — -2 Bouv. Law Dict., title “Sunday,” § 4; Sanders v. Ochiltree, 5 Port. 73,
The suit should have been brought on the 25th day of May, 1872. The eourt erred in its charges given as to the bar of the statute of limitations, and also in refusing to give the charge requested by the appellant, who was defendant below.
Eeversed and remanded.