85 Ala. 301 | Ala. | 1887
Bartholomew Boyle died intestate in 1875, and Needham Lee became his administrator. On petition and schedules filed by him, the estate was decreed insolvent, October 7, 1877. On April 7, 1878, E. H. Kelly filed a claim against the insolvent estate, for over $9,000; andón June 27th, 1878, JohnT. Milner filed aclaim for over $24,000.
The'present proceeding was - instituted January 20, 1888. It is a petition by the administrator d.e, bonis non, addressed to the Probate Court in which his administration is pending, and makes the heirs of said Boyle, the intestate, parties defendant. Its prayer is to have certain lands, property of decedent, decreed to be sold for the payment of said alleged debts to Kelly and Milner, there being no personal property for their payment. No objection has been taken to the mere form of these proceedings, and we have discovered no ground for such objection. Many defensive reasons are urged why the prayer of the petition should not be granted. The Probate Court held the defense good, and dismissed the petition.
The first defense relied on is the statute of limitations of six years, and laches, under which it is contended that the claims, for the payment of which a sale of the lands is sought, are barred, and furnish no ground for such sale. To this it is replied, that under the influence of our statutory system, the Kelly and Milner claims have become fixed debts and quasi-judgments against Boyle’s estate, and the statute of limitations of six years operates no bar. — Code of 1886, §§ 2238, 2244, 2245.
At the time Boyle’s estate was declared insolvent — October
The statute, Code of 1886, § 2244 (2574), declares that, “If no opposition is made, .... within twelve months after the time when the estate was declared insolvent, such claim must be allowed against the estate without further proof.” The opposition here meant includes any and all objections to the claim which might be filed under section 2245 of the Code of 1886. The particular contention of appellant, as we have shown, is, that inasmuch as the claims of Kelly and Milner were filed, verified, before the expiration of the nine months allowed for filing claims, and no objections were interposed within twelve months — thus establishing their claims “against the estate without further proof”— they thereby became qitosi-judgments, and cut off all defenses to them as such, no matter from what quarter such defenses may come.
It is certainly true, that when a claim has been filed against an insolvent estate, and not objected to in time, it becomes an ascertained and fixed debt against the personal representative, and against the personal assets in his hands; and, to that extent, it is no longer open to defenses which merely assail its justness as a proper charge. It is open only to defenses which accrue after the time for filing objections has expired. This has been very many times decided.' — Thames v. Herbert, 61 Ala. 340; Thornton v. Moore, Ib. 347; Clark v. Knox, 70 Ala. 607; Randle v. Carter, 62 Ala. 95; Eubank v. Clark, 78 Ala. 73; Moore v. Winston, 66 Ala. 296. In Heydenfeldt v. Towns, 27 Ala. 423, there are some expressions which go beyond the doctrine announced above; but in that case the question did not arise as it does in this. If it was intended to declare that a claim filed against an insolvent estate, and not objected to in the
But let us consider this question on principle. Before December 4, 1878, only the personal representative and the creditors were, or could be, parties to proceedings in insolvency of estates. Heirs, devisees, legatees, distributees, were not permitted to be heard. They were said not to be affected by them. As to them, the proceedings were res inter alios acta. — McGuire v. Shelby, 20 Ala. 456 ; Randle v. Carter, 62 Ala. 95; McMillan v. Rushing, 80 Ala. 402. Would it not be monstrous to hold that the heirs are concluded by a proceeding of which they had no notice, and in which they had no right to appear, if by chance they had learned that it was pending ? If the statute had declared, in ’terms, that the effect of proceedings in insolvency, in in which they are denied the right to appear, should be to establish a debt, under which lands descended to them could be sold, without any right in them to question the existence of the debt, such statute would be palpably unconstitutional. Wilburn v. McCalley, 63 Ala. 436. And such doctrine, applied to such a case as this, is all the more shocking, when, by inattention or indifference, a careless administrator, or careless or interested creditors, may fail to file objections to claims, and thus establish them, no matter how groundless they may be.
As we understand the position taken by the appellant, it is not denied that, if Boyle’s estate had remained solvent, then the heirs could interpose any defense to the present application, or to the claims on which it is founded, which their ancestor could urge if living. Our many rulings have settled this doctrine too firmly, to leave even a pretense for further dispute. — Teague v. Corbitt, 57 Ala. 529; Steele v. Steele, 64 Ala. 438; Scott v. Ware, Ib. 174; Trimble v.
Tbe reason on wbicb tbe rule rests is, that while tbe title of the personalty is in tbe personal representative, and as to it be represents all parties in interest, sucb is not tbe case with realty. Tbis descends to tbe beirs, and in every step tbe personal representative takes in regard to it, be interferes with tbe descent. All tbe power tbe statutes give him over tbe land is in tbe interest of tbe creditors, and is in antagonism to the rights of the beirs at law. — Teague v. Corbett, 57 Ala. 529; Steele v. Steele, 64 Ala. 438, 455; Trimble r. Fariss, 78 Ala. 260, 266; Clark v. Knox, 70 Ala. 607, 622. And tbis is alike and equally true of insolvent, as it is of solvent estates. We bold that, with exceptions to be noticed further on, there is neither a difference, nor ground for a difference on tbis question, between solvent and insolvent estates; and when proceedings are instituted to subject lands to tbe payment of debts of an insolvent estate, “whatever would operate to defeat and bar tbe debt as a legal, subsisting demand, enforceable against tbe intestate if living and sued, will defeat and bar it when tbe personal representative seeks to charge tbe descended lands.” — Steele v. Steele, 64 Ala. 438; Warren v. Hearne, 82 Ala. 554.
When, on proper proceedings, an estate is declared insolvent, it does not put an end to suits then pending against tbe personal representative. It, however, changes tbe status of all common-law suits, which have for their object tbe fixing of a money liability on tbe estate represented. These are retained, and permitted to be prosecuted to judgment, for tbe purpose of ascertaining whether any thing, and bow much is due. If a money judgment is recovered against tbe estate, it is not enforceable by execution, as ordinary money judgments are. It is certified to tbe court of probate, for equal allowance with tbe other debts of tbe insolvent estate, and shares only pari passu with them in tbe disbursement. — Code of 1886, §§ 2250, 2251. Money demands, however, or claims solvable in money, asserted against tbe estate, if not in suit when tbe decree of insolvency is pronounced, stand on a different footing. On sucb claims no suit at law can afterwards be instituted. Their assertion, and any litigation growing out of it, must take place in tbe Probate Court in wbicb the administration
Our insolvent system was intended to be complete, .and we do not doubt it includes and provides for all claims that can
It will be remembered that each of the two claims against Boyle’s estate, brought to view in this case, is preferred in the character of surviving partner, claiming a balance due on partnership account,'and not pretending that any settlement of either partnership has ever been had. Aside from these two claims there are no debts. Are these claims of such a character as, not being objected to within the twelve months, they become established claims against the estate, so as to authorize an order of sale without proof of indebtedness?— Code of 1886, § 2258.-
While we concede that all claims against insolvent estates, absolute or contingent, legal or equitable, must be filed within the nine months, to entitle them to share in the disbursement, there are claims which, in their nature, forbid that anything shall be done in the Probate Court beyond the mere filing. We will not undertake to define or declare to what classes of cases this principle applies, but will confine our ruling to the case in hand. We hold, then, that claims, to be “allowed against the estate without further proof” (Code, § 2244), merely because they were filed and verified in nine months, and not objected to in twelve months, must be of a character which, if objected to, the Probate Court can determine their correctness, on “an issue to be made up between the claimant and the objector.” — Code, § 2245. To hold otherwise, would be to declare that a claim would be entitled to allowance, if filed and not objected to, while the same claim, if objected to, could not be allowed, because the Probate Court is without jurisdiction to ascertain its correctness. The legislature can not be supposed to have intended so incongruous and inequitable a system as this would imply.
The claim in the present case being between partners, growing out of partnership dealings, and the accounts not settled between themselves, the question of debit and credit depends on the entire accounting and adjustment of the entire effects of the respective firms. — Broda v. Greenwald, 66 Ala. 538. This can not be had in the Probate Court. Only the Chancery Court can settle partnership accounts between partners. — Vincent v. Martin, 79 Ala. 540; 5 Wait’s Act. & Def. 149. The claims relied on in this case, although not objected to, do not amount to prima facie proof of indebtedness from decedent, which will authorize a decree
Controlled by the principles stated above, we hold that the proceedings in insolvency in this case have cut off none of the defenses which the heirs could otherwise make to the claims of Kelly and Milner. To them, the claims are simply accounts, barred in six years, prolonged to six years and six months by reason of Boyle’s death. — Pickett v. Hobdy, 63 Ala. 609; Lewis v. Ford, 67 Ala. 143; Lee v. Downey, 68 Ala. 98; Bond v. Smith, 2 Ala. 660; Teague v. Corbitt, 57 Ala. 529; Scott v. Ware, 64 Ala. 374; Steele v. Steele, Ib. 438; Trimble v. Fariss, 78 Ala. 260; Warren v. Hearne, 82 Ala. 554. To them the affairs of the several partnerships are unsettled, with no act in recognition of their continued existence, for a period much longer than is requisite to perfect the statutory bar to any suit for their settlement; in this behalf, also, prolonged to six years and six months. Bradford v. Spyker, 32 Ala. 134; Brewer v. Browne, 68 Ala. 210.
The inquiry may arise, if we have not left creditors, situated as Kelly and Milner were, without remedy for the enforcement of their claims. If we were to declare absolutely what mode of redress was open to them, our ruling would be dictum. But their claims being purely equitable, and not susceptible of ascertainment in any proceeding known to the common law, should they not, after presenting and filing them, have invoked the powers of the Chancery Court to have them adjudicated and. established, thus presenting the running of the statute ? This, it would seem, was the only means open to them of putting their claims in shape for allowance in the insolvency. This is but a suggestion.
The judgment of the Probate Court is affirmed.