Chamblee v. Proctor

May 22, 1919
6 Div. 901.
Reporters:
, ,
Before:
Sayre
SAYRE, J.

[1] This appeal is supported by the order citing appellant administrator to a final settlement. Howard v. Howard, 26 Ala. 682; McDaniel v. Whitman, 16 Ala. 343. The motion to dismiss is overruled.

[2-4] On the ‍‌​​​​‌‌​​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​​​‌​​​​​‌​‌‌‌​​‌​‌‌‌‌‌‌‌‌​‌​​‌​​‌​​​​​​‌​​​​​​​‌‌‌‌‌​​​‌‌‌‌‌​‌​​​​​‍facts alleged in the petition appellant’s administration of the estate in his beeping was ready for final settlement. Nor did appellant in his answer urge any material thing to the contrary. Of course the mortgage security held by Messrs. W. H. & H. U. Sims on real property of the estate of intestate could not be affected by any set-’ tlement made in the probate ‍‌​​​​‌‌​​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​​​‌​​​​​‌​‌‌‌​​‌​‌‌‌‌‌‌‌‌​‌​​‌​​‌​​​​​​‌​​​​​​​‌‌‌‌‌​​​‌‌‌‌‌​‌​​​​​‍court in advance of its due date, but, in order to preserve their debt as a charge against intestate’s general estate, filing was necessary under the statute. Code, §§ 2590, 2593. The outstanding claim brought forward by appellant, was. not verified as required (Brannan v. Sherry, 195 Ala. 272, 71 South. 106), and,-12 months having elapsed since the grant of letters, and the estate being ready for ‍‌​​​​‌‌​​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​​​‌​​​​​‌​‌‌‌​​‌​‌‌‌‌‌‌‌‌​‌​​‌​​‌​​​​​​‌​​​​​​​‌‌‌‌‌​​​‌‌‌‌‌​‌​​​​​‍final settleirfSnt in all other respects, the claim furnished no sufficient reason for delay. Appellant contends that intestate’s estate was not ready for the final settlement to which he was summoned, for the reason that the Sims debt, due in 1921, had not accrued within the meaning of section 2589 of the Code, and was therefore not yet ripe for presentation. But a ‍‌​​​​‌‌​​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​​​‌​​​​​‌​‌‌‌​​‌​‌‌‌‌‌‌‌‌​‌​​‌​​‌​​​​​​‌​​​​​​​‌‌‌‌‌​​​‌‌‌‌‌​‌​​​​​‍claim may fall within the operation of the statute of nonclaim, though the right of action thereon has not accrued. It is enough that the claim, the right, to demand in the future, certainly exists. McDowell v. Jones, 58 Ala. 25. It is only contingent claims— claims which may never accrue — -that fall within the provision postponing the presentation of claims accruing after ‍‌​​​​‌‌​​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​​​‌​​​​​‌​‌‌‌​​‌​‌‌‌‌‌‌‌‌​‌​​‌​​‌​​​​​​‌​​​​​​​‌‌‌‌‌​​​‌‌‌‌‌​‌​​​​​‍the grant of letters. Farris v. Stoutz, 78 Ala. 130.

The court committed no error in sustaining the demurrer to appellant’s answer to the citation. ’

Affirmed.

ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.