Bibb v. Mitchell

58 Ala. 657 | Ala. | 1877

BBXOKELL, 0. J.

1. A presentment of a claim to save the bar of the statute of non-claim, may be made to the executor or administrator, or it may be by filing the claim, or a statement thereof, in the office of the judge of probate granting administration. — Code of 1876, § 2599. It is not necessary whether the one mode or the other of presentment is pursued to present the identical claim. If it is a claim the evidence of which is in writing, as a bill, note, or bond, it is sufficient to state its description with such accuracy, that the executor or administrator will be informed of its character, the liability it imports, and, if there is future litigation as to the fact of presentment, that the claim may be distinguished from all similar claims. — Hallett & Walker v. Br. Bank Mobile, 12 Ala. 193; Posey & Coffee v. Br. Bank Decatur, Ib. 802.

2. The statement of the claims filed in the office of the probate judge, relied on as a presentment of the notes on which the present action is founded, is very indefinite and uncertain. Except as to the amount, and time of payment of the notes, there is no description by wdiich they may be distinguished from any notes for similar amounts maturing at the same time. It is not shown when the notes were executed, nor to whom they were payable, nor whether they are joint or several obligations. If it was intended as a statement of the notes on which the present action is founded, it omits tbe material part of the notes, that they bear interest from date. While the person making the presentment is shown to be Sam’l Spence, adm’r, 'there is nothing stated from which it can be ascertained of what estate he is administrator, nor whether he or the intestate is the payee of the notes. A presentment which will avoid the bar of the statute must be more than enough merely to excite the inquiry of the personal representative — it must give such information of the existence of the claim, that he may determine — assuming its validity — how far he can proceed safely in the administration of the estate as solvent; and if a mere statement of the claim is relied on as a presentment, that statement should describe the claim-with such accuracy that it may be distinguished from all similar claims. Notes for a like amount, falling due at the same time, bearing or not bearing interest, payable to the intestate of Spence, would answer the description in this statement, equally with the notes, the subject of suit, payable to him as administrator; or notes similar in amount, and time of maturity, payable to him as administrator of any other estate than that of James S. Mitchell, would also answer the description in the statement. As a presentment of the notes this statement was insufficient, and the Circuit Court erred in refusing so to instruct the jury.

8. There was other evidence of a presentment, the Sufficiency of which it was for the jury to determine. It was conflicting, and the instructions requested by the appellants proceed on the hypothesis, that because of the conflict, the jury would not regard it as sufficient, and to this hypothesis the instructions requested are adapted. A party lias a right to instructions based on a hypothesis favorable to him which the evidence tends to support. Such instructions are not objectionable because based on a partial view of the evidence, as his adversary may request contrary instructions, or instructions founded on a contrary hypothesis, so far as the evidence will authorize.— Griel v. Maries, 51 Ala. 566.

Let the judgment be reversed and the cause remanded.