84 Ala. 336 | Ala. | 1887
The ease of Owens v. Thurmond's Adm'r, 40 Ala. 289, in no wise conflicts with this view. It is there decided that a creditor of one of the distributees of a decedent’s estate is not a person interested in such estate, within the meaning of this statute, which appeared in the Code of 1852 as section 1812 — such interest being regarded as too uncertain and remote. In that construction of the statute we fully concur.
The interest which creditors haVe in the settlement of this estate is manifest. The original and out-going administrators, Byrd and Stringfellow, are being brought to a final settlement. If certain claims are allowed to them by the Probate Court the estate will probably be rendered insolvent. If objections are sustained to these claims a different result may follow. Their final discharge will acquit them of liability to creditors for any damage or devastavit suffered by their negligence or wrongful acts. Under this state of facts we hold that any creditor of the estate is interested in the settlement proposed to be made, because he is interested in preventing -the estate from becoming insolvent by the improper allowance of illegal claims, which would operate to reduce the pro rata amount to be distributed among such creditors.
The evidence, in our opinion, was sufficient to show a prima facie case of insolvency, the fact presented on this inquiry arising, as it does, collaterally. As said in a former case touching this point: “ When a fact arises collaterally, the rules of evidence never exact as cogent proof in affirmation of its verity, as where it is directly in issue. If the notes of the intestate, and other presumptive evidences of his indebtedness, which are presented for payment to the administrator, exceed in amount the assets of the estate, which are available for the payment of debts, a prima facie case of insolvency exists. It is immaterial that some of these claims are in litigation, and are alleged to have been settled. If they are in the forms of promissory notes, or other like written acknowledgments of indebtedness, which are in the possession of the creditor, the law does not presume they are paid, but the onus of such a defense is cast upon the maker.” — Life Asso. America v. Neville, 72 Ala. 517. On such a collateral issue, the claims presented in the forms of itemized accounts, properly verified by affidavits showing their correctness, may now be considered as a portion of the indebtedness presumptively at least, until the contrary is proved, — (Code, 1886, §§ 2773; 2143) although on a direct issue a higher measure of proof might be required. Prima facie validity being established, the court will not, in the absence of creditors, enter upon any inquiry as to any alleged defense to the claim, whether it be payment, the bar of the statute of limitations, or other matter of mere confession and avoidance.
The retention of these notes by the widow was tantamount to such selection. This was done under the form of a compromise of her claim of interest in the decedent’s estate, which necessarily included her exemptions. The arrangement was consummated by the distributees, and was reduced
The judgment will be corrected to this extent, and as corrected will be affirmed at the costs of the appellees.