46 Ala. 634 | Ala. | 1871
This case involves a construction of section 2196 of the Eevised Code. That section is in these words: “ Every person having any claim against the estate declared insolvent, must file the same in the office of the judge of> probate, within nine months after such declaration, or after the same accrues, verified by the oath of the claimant, or some other person, who knows the correctness of the claim and that the same is due, or it is barred forever ; but when a claim is filed by an executor or administrator, guardian or other trustee, it may be verified by affidavit of such executor, administrator, guardian or trustee ; that he believes the claim to be just, due and unpaid ; and in all cases where a claim is verified under this section within the time prescribed, if the verification is defective or insufficient, the defect or insufficiency may be supplied by amendment or proof, at any time before final decree.” Rev. Code, § 2196. It is also directed that “ the judge of probate must, when required, give a receipt for such claim to the claimant, his agent, or attorney, and must endorse on the claim the day when the same was filed and sign his name thereto. And “ such judge must keep a docket of all the claims thus filed, which must be at all times during office hours, subject to the inspection of the administrator and creditors of the estate.” — Revised Code, §§ 2200, 2201. These sections of the Revised Code constitute a peculiar system for the settlement and distribution of insolvent estates. What they require must be done or the claim will be barred. That is, it can not be enforced against the estate. Here the claim in controversy was not filed or docketed under this chapter of the Code governing the “ proceeding as to insolvent estates.” But it was filed and docketed under section 2241 of the Eevised Code. This latter section is in these words; “ The presentation may be made either to the executor or administrator, or by filing the claim or a statement thereof in the office of the judge of probate, in which letters were granted;
The claim under discussion was filed by Mrs. Clement, with a proper verification, in the office of the judge of probate on the 12th day of December, 1868. And the estate was declared insolvent on the 8th day of March, 1869. The claim could not then have been filed against an estate declared insolvent; because this was not the condition of this estate at that date. And as there are two statutes, the one allowing the claim to be filed before the insolvency in lieu of presentation to the administrator or executor, in order to save the demand from the bar of the statute of non-claim for failure to present the claim to the administrator or executor, and the other requiring a like filing after the declaration of insolvency in order to save the demand from the bar of non-claim on the proceedings in the insolvency, I feel constrained to hold that the two are different, and that the one was not intended to take the place of the other in either case. It follows from this construction that, the filing in this instance was not sufficient to save the claim from the bar of the statute of non-claim in case of a declaration of insolvency. In this latter instance, the claim must be filed after the declaration of insolvency, as required by the statute, or it will be barred for ever.
The judgment of the court below is in conformity with this construction, and is therefore affirmed at appellant’s costs.
