Flinn v. Shackleford

42 Ala. 202 | Ala. | 1868

BYRD, J.

1. The Code declares that “ all claims against the estate of a deceased person, must be presented within eighteen months after the same have accrued, or within eighteen months after the grant of letters testamentary or administration; and if not presented within that time, are forever barred.” — § 1883. The statute previous to the adoption of the Code was in substance, upon this subject, the same as the above provision. This court has long held that under this statute, it is not necessary for the claimant to present the original claim to the executor or administrator in order to hold them liable, and the presentation of a copy or abstract, or even notice given of the claim, with the assertion of the liability of the estate, and that he looked to the executor or administrator for payment, would be sufficient. — Bigger, adm'r,v. Hutchings et al., 2 Stew. 447 ; Garrow v. Carpenter, et al., 1 Por. 359 ; Hallett et al. v. Br. Biz. at Mobile, 12 Ala. 193 ; Pollard v. Sears, 28 ib. 484. The Code also provides that every person having any claim against an estate which has been 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 the same is forever barred.” — § 1847. It is further provided, that if no opposition is made “within, twelve months after the time the estate was declared insolvent, such claim must be allowed against the estate without further proof.” — § 1853.

In this case, the claim is a bill of exchange drawn and endorsed by the decedent. A copy of it was filed as a claim against the estate, and a verification by affidavit, in which it is asserted that the “ bill of exchange is a correct claim against the estate of said J. A. Bozeman, and is due and unpaid,” and that affiant is “ the owner and holder” of the original bill. It is contended, that this is not a filing of the claim within the meaning of § 1847 of the Code, and that the original bill should have been filed to make the filing such as the statute required. As it has been held that the presentation of a copy would be good under § 1883, it would seem that, the .filing of such a copy would be sufficient under § 1847.' The language used in the former section is, “ all claims against the estate of a deceased person must be presented,” &c.; and in the latter, “ every person having any claim against the estate so declared insolvent must file the same,” &c. The slight dissimilarity in the language thus used in these sections of the Code would not authorize a departure from the construction put upon the former in this respect; and we think that the language used in both sections is so nearly ■ the same, substantially, as to require us to hold that the filing of a copy of a claim is a sufficient filing. Such a ruling preserves the analogies which should be observed in the .construction of statutes which are in pari materia. Besides, too rigid a rule should not be enforced against parties in a court which has' no technical rules established for its proceedings, and which looks to the substantial administration of justice and equity without being held down to the strict rules of courts of common law. In the administration of insolvent estates, the statutes should be construed liberally in favor of the remedy given to creditors, and not strictly to defeat their claims. To hold that the original claim must be filed, would be a degree of strictness, neither in harmony with the doctrine announced nor promotive of the ends of justice. We, therefore, hold that the filing of the copy of the claim, is a filing within the meaning of § 1847 of the Code. Rowdon v. Young, Adm’r, 12 Ala. 234. As to the point made by counsel, that the administrator could not file a plea of non est factum without an inspection of the original claim, there can be no doubt that upon a proper motion he could require its production for the purpose of pleading to it — or if he had filed objections within the time prescribed by law he might perhaps be permitted to file additional objections or pleas at the hearing.

2. It is contended that the claim as filed and the affidavit thereto, do not show that the decedent was liable for the payment thereof. This is a question not free from difficulty. The bill had been accepted by the drawees, and was past due when filed, and no evidence of protest and notice was filed with, the claim, or other evidence which dispensed with the protest and notice. It is therefore insisted that the claim as filed, showed no liability on the part of the decedant or his estate to pay the bill. In the case of Cook v. Davis, 12 Ala. 551, the claim filed was a receipt of the intestate, which recited that “ he received a note from Cook on Calvin M. High, for $249, which note he was to collect or return.” The receipt was “ verified by the affidavit of .Cook as just and true,” and that he had not “received anything on account of it.” An objection was made on the ground that “ the affidavit and certificates appended were insufficient to establish a claim.” A note of intestate payable to Jones, Cook & Co., was also filed, verified by Wiley B. Cook, in form as the other claim. And this was objected to on the ground that it was not verified by the oath of the claimants, or by any sufficient evidence to establish it. Both affidavits were made before a justice of the peace of the State of Mississippi. The court say, “ it may be difficult to say, that any precise form (of the affidavit) will cover all cases, but there is none in arriving at the conclusion, that the claim as presented must, in connection with the affidavit, show something for which the estate is responsible. If we test the first claim by this rule, it will be evident that neither the receipt nor the affidavit, nor both together, establish any matter for which the estate is responsible. It may be, the creditor yet possesses the means of collecting the note mentioned in the receipt, or it may be wholly worthless. As to this demand there was nothing to elevate it into a claim, and its rejection was regular, even if an exception had been taken.” As to the latter claim the court say, “ it is not even asserted in the affidavit, that he is the claimant of the sum due by it from the estate. Without undertaking to decide the claimant should show a legal title to the claim presented, we are clear that the statute requires the affidavit to be made by some one claiming either the legal or an equitable interest in the claim asserted. In this particular, this claim is also unsupported, and its rejection would be sustained, if an exception had been regularly taken.” The appellant in that case had failed to take an exception to the action of the court below in rejecting the claims on the affidavits filed. The court did not pass on the question whether the claimants could not have amended their affidavits at the trial, or offered evidence to supply the defects and make out a valid claim against the estate. We áre satisfied upon the authorities hereafter cited, that the claim and the affidavit filed in this case are sufficient to authorize the allowance of the claim, no objection having been made to its allowance within twelve months after the estate was declared insolvent.— Code, § 1853 ; McNeil v. Macou’s Adm’r, 20 Ala. 772 ; Bartol v. Calvert, 21 ib. 42 ; Hogan’s Ex’r v. Calvert, Adm’r, ib. 194; Gaffney v. Williamson’s Adm’r, 21 ib. 42; Stubbs v. Beetle’s Adm’r, 37 Ala. 42. It is true that the affidavit in this case does not show all the facts necessary to a recovery in a suit at law ; but as no objection was made to it within the time prescribed by law, and there being a substantial cause of action asserted in the affidavit by the averment that “ the bill of exchange is a correct claim against the estate of the said J. H. Bozeman, and is due and unpaid, and that the affiant is the owner and holder thereof,” taken in connection with the copy of the bill thus verified, we are of opinion that the court below-was bound to allow it “ without further proof.” I am inclined to think, that a judgment by default in a court of common law, on a complaint setting out in form such a state of facts or conclusions of law, as are shown by this claim and affidavit, would be held good on an appeal under § 2405 of the Code.

But however this may be, the same strictness of pleading is not requisite to the assertion of rights in the probate court, as in the courts of general common law jurisdiction. And if the claim and the affidavit show a substantial subsisting liability in favor of the claimant, against the decedent, and asserts it in general terms, although not with the particularity of pleadings in the courts of common law, we think it is sufficient. And such is the case before us.

Hence, the decree of the court below is affirmed.