39 Ala. 489 | Ala. | 1864
The question which meets us at the threshold of this case, renders it necessary that we decide whether the claims which are the subject of controversy in this suit, are barred by the limitation known in this State as the statute of non-claim. Although that statute has existed for near fifty years, without material change in any point which the record before us presents, we are not aware that the point now under discussion has ever before been made or considered, Yery able arguments have been submitted by counsel-^arguments which furnish unmistakeable evidence of thorough research; and we have ourselves expended much time and labor in pursuit of authorities bearing on this question, with little or no success. Although most of the States composing the late Union have statutes of limitation, specially applicable to claims against the estates of decedents, in none of them have we found language like that which creates the difficulty in the present suit. This being the case, it will not surprise the profession, that neither the industry of counsel, nor our own reading, has led to the discovery of any adjudged cases to aid us in the construction of the language of our statute. Some adjudications have been made on the import of the word “claim,” found in our statute; and from those adjudications, analogies, real or fancied, may be drawn; but we confess that we have derived little or nothing that is satisfactory from this source.—See McBroom v. Governor, 6 Porter,
The statute to be construed is found in the Code: “§ 1883. 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 of administration; and if not presented within that time, are forever barred.” “§ 1884. The provisions of the preceding section do not apply to * * * * heirs or legatees, claiming as such.” (We omit the parts of section 1884 which do not apply to this case.)
The question before us arises on the construction of the language, “heirs and legatees claiming as such.” This language was first employed in the act of 1815, (Clay’s Digest, 195, § 17,) and was copied into the Code. Eor the appellants it is contended, that to come within the exception, the claimants must stand in the relation of heirs or legatees of the estate against which the claim is asserted, and to whose administrator, in the absence of the proviso, the claim should be presented.
After much reflection, I am still far from a satisfactory conviction that the solution I am about to give is the true one. My brothers are less troubled with doubts than I am, and, on that account, I announce the result with less reluctance. We hold, that the appellees are embraced in the proviso to the act of 1815, and in section 1884 of the Code, under the words “heirs and legatees claiming as such,” for the following reasons :
Eirst: They are within the letter of the statute. They claim in the character of heirs and legatees, which is but a legitimate paraphrase of the language, “heirs and legatees claiming as such.” They come within the heirs and legatees, and their present claim can b no other capacity. They have claims against Kirkland Harrison, only because they are th<
Second: In the act of 1815, the exception in favor of “heirs and legatees, claiming as such,” is put as a proviso to the section which enacts the bar, known as the statute of non-claim. In the Code, the exception is found in a separate section ; but this was done in pursuance of an evident plan of the codifiers, to embody our statutes, as far as possible, in brief sentences, confined to a single subject. The same plan was pursued in other parts of the Code ; and certainly a statute, thus framed, does not differ in its legal results from one which expresses the exception in the form of a proviso. Provisos and exceptions do not enlarge the operation of enactments, but are restrictive in their character. Now, our statute of non-claim, even without the exception, does not, and never did, embrace the claim of heirs or legatees, to inheritances or bequests coming to them directly from the estate of which they are heirs or legatees. They language of the statute is, (Code, § 1888,) “all claims against the estate of a deceased person” &c. To be a claim against the estate, there must be the relation of debtor and creditor; and we are not aware of any conceivable case in which the claims of heirs and legatees to the estate, or parts of it, can be called claims against the estate. Claims against an estate are almost universally those claims against the testator or intestate, which existed, and were left unadjusted, at the time of his death. I will not say there may not be exceptional cases, in which valid claims against an estate may have their inception after the death of the person, late its owner; but the general rule is the other way,—See Mulhall v. Williams, 32 Ala. 489, and authorities cited. It is manifest, however, that the claims of heirs and legatees, to share in the estate, after the payment of the debts, &c., is in no sense a claim against the estate. To hold, then, that the exception embraces only those persons who stand in the relation of heirs and
A further argument: Claims against the estate of a deceased person, are the subject of both sections of the Code — 1888 and 1884. They make no allusion to claims to the estate, or to parts of it. Claims against the estate, if not presented, are barred; and these sections embrace none other. Supplying the ellipsis in section 1884, it would read substantially as follows: Claims against the estate of a deceased person, preferred by heirs or legatees claiming as such, are not embraced in section 1883. That is, they are not barred by a failure to present therq within eighteen months. Under the paraphrase of the statute above submitted — namely, that the provisions of section 1883 do not apply to the claims against the estate preferred by heirs and legatees claiming in that capacity, the present appellees are brought directly within the operation of the proviso or exception, and are not barred.
In what we here announce, it is not necessarily decided whether the claim of the appellees is embraced in the provisions of section 1883 of the Code. If embraced, it is also embraced in the exceptional clause of section 1884.
It is argued that what we have said above cannot be the proper construction of this clause, because, at the time it was first enacted, (1815,) and for thirty years afterwards, we had no statute which required, or even authorized, an administrator of an administrator-to settle the administration of his intestate.—See Willis v. Willis, 9 Ala. 721; Price v. Simmons, 13 Ala. 749; Whitworth’s Distributees v. Whitworth’s Adm’rs, in manuscript. But, during all that time, the court of chancery possessed ample power in the premises, and this furnished a field for the statute to operate upon.—Taliaferro v. Bassett, 3 Ala. 674; King v. Smith, 15 Ala. 269.
It is further urged against this construction, that while it relieves the heirs and legatees of the first estate from the bar of the statute, the exception is not broad enough to
Without intending to decide, at this time, whether or not tbe bar would operate, if pleaded against tbe administrator de bonis non, tbe legislature stands relieved of all charge of intentional inequality, when it is remembered that until 1845, thirty years after tbe enactment of tbe statute of non-claim with its exceptions, the administrator de bonis non could recover from tbe administrator in chief, or bis representative, only such portion of tbe assets as remained in specie, unaltered and unconverted.—See Moore v. Armstrong, 9 Porter, 704; Price v. Simmons, supra; Willis v. Willis, supra; King v. Smith, 15 Ala. 268; Gould v. Hayes, 19 Ala. 450. See, also, Pamph. Acts, 1844-5, p. 166; ib 1845-6, p. 14; ib. 1853-4, p. 24. To a claim or suit for property, remaining in specie, tbe statute of non-claim is no defense.—Loche v. Palmer, 26 Ala. 312; Andrews v. Huckabee, 30 Ala. 151. This may account lor tbe failure of tbe legislature to insert an exception in favor of administrators de bonis non; for such exception, until 1845, would have been useless and supererogatory.
Richard B. Harrison died in March, 1843, and soon af-terwards, Kirkland Harrison administered on his estate. Kirkland Harrison died in the fall or winter of 1849, without having settled his administration; and in February, 1850, E. A. Saunders and Mrs. Harrison administered on his estate. The present proceedings were instituted in June, 1858; citation was served soon afterwards, and the decree was rendered in 1859.
There is no statute which, in terms, fixes a limitation to proceedings like the present; this not being one of the actions mentioned in the six years’ limitation. — Clay’s Dig. '326, § 78. If, then, there be a limitation applicable to this 'case, it must be sought for in the analogy which is supposed to exist between the present proceedings and some of the actions enumerated. We deem it unnecessary to discuss this supposed analogy, for the following reasons:
First: Administrators, when they are appointed, and before they enter upon the performance of their duties, are required to give bond, conditioned to “perform all the duties which are, or may be, by law required of them.” — Clay’s Dig. 220, § 3; Code, § 1683. The voluntary or coerced settlement of an administrator in the probate court, although not generally a proceeding directly on the bond, is still so far connected with it, that, when a decree is rendered, and an execution returned “ no property found,” an execution may issue, for the enforcement of the decree, against the sureties on the bond.—Code, § 1922; Elliott v. Mayfield, 4 Ala. 417; Kirby v. Anders, 26 Ala. 466; Poacher v. Weisinger, 20 Ala. 102; Hanna v. Price, 23 Ala. 826. Against
It is proper that we should state, that the case of Ragland v. Calhoun, supra, turned on the construction of another statute than the one we are construing.
The argument offered above springs naturally out of the solemn bond and obligation which the administrator rests under, for the performance of all the duties which are, or may be, required of him by law. It is not weakened, nor rendered inapplicable to the present case, by the fact that this is a proceeding against the administrator of an administrator, upon the decree rendered in which cause no execution can issue against the sureties of Kirkland Harrison. See Jenkins v. Gray, 16 Ala. 100; Kirby v. Anders, 26 Ala. 466. Neither the principle of liability, nor the length of time necessary to perfect a bar, can be. affected by the accident of the principal obligor’s death, as we shall hereafter show. — See Code, § 1928.
Second : It is frequently the case, that the proceeding is instituted in the first instance on the bond of the administrator, without preliminary steps of any kind to charge the administrator. The following are of this class: When an administrator has neglected or failed to pay a judgment rendered against him, to be levied de bonis intestatis, a suit may be maintained on the bond against him and his sureties, even though no execution has issued for the collection of the judgment, provided assets had come to his hands with which he might have paid the judgment.—Burke v. Adkins, 2 Porter, 236; Thompson v. Searcy, 6 Porter, 393-412; Kyle v. Mays, 22 Ala. 692; Amason v. Nash, 24 Ala. 279; Dean v. Portis, 8 Ala. 104.
A distributee may proceed in equity against, the administrator and his sureties, or, if the administrator dies leav
In the settlement of administrators’ accounts, no item can be charged against the administrator, no matter how he may have conducted himself in regard to it, unless such item properly belong to the assets of the estate; for the administrator, in such settlement, can only be charged to the extent that he and his sureties are liable under the statutory bond.—Pettit v. Pettit, 32 Ala. 288; McCain v. McCain, 12 Ala. 510; Mounger v. Burke, 17 Ala. 48.
On the question of the bond-liability of the administrator and his sureties, see, also, Aylett v. King, 11 Leigh, 486; Wilson v. Buchanan, 7 Grattan, 334; Talliafer v. Thornton, 6 Call, 21; Spottswood v. Dandridge, 4 Munf. 289; Burnett v. Harwell, 3 Leigh, 89; King v. Smith, 15 Ala. 264; Gould v. Hayes, 19 Ala. 438; Holley v. Acre, 23 Ala. 603; Amason v. Nash, 24 Ala. 279; Gray v. Jenkins, ib. 516. See, 1 Lomax on Ex’ors, 328-9; Irving v. Veitch, 3 Mees. & Wels. 104-5; Dowling v. Ford, 11 Mees. & Wels. 328; Burnet v. Cooper, 9 Beav. 252.
The liability, then, of the administrator and his sureties, resting, as it does in this case, on the statutes of limitation "which were of force before the Code became operative, there is no statute of limitations applicable to this case. Bedell v. Smith, 37 Ala. 548-554.
We have thus far treated this question as res imtegra. In the case of Rhodes v. Turner, (21 Ala. 210-217,) this court said: “ Our statutes fix no period as a limitation to proceedings against an executor or administrator in the orphans’ court, to compel him to come to a final settlement. We do not think that the six years’ statute, prescribed as.the limitation to actions at law for an account, and which, by analogy, the chancery court adopts, can apply; for the court here has the administration of the estate in progress, and the proceedings before it must be considered as infieri,
Section 3928 of the Code goes very far to show that, when an administrator of an administrator is cited to settle his intestate’s administration, he can make no defense which his intestate could not have made. It provides that, “ for waste or conversion of the assets of a deceased person by the executor or administrator, his personal representative is liable in the same manner as the executor or administrator guilty of the devastavit would be liable, if living.”
But it is not enough that the administrator distribute all the property and assets that have come into Ms hands. He
Eor the administrators it is contended, that several of the distributees had previously elected to charge Kirkland Harrison’s estate with the proceeds of the crops of 1844 1845, and not with the rents and hires; and it is here contended that, in allowing the distributees, under these circumstances, to elect, the probate court erred. Eor the purpose of showing that the distributees had determined their election, the administrators put in evidence the record of proceedings had in the chancery court of Dallas, as follows:
Bill in chancery, filed in 1846, by Bobert and Amelia Bives and others, as distributees of B. B. Harrison, deceased, against Kirkland Harrison, administrator, to bring him to a settlement of his administration. Several orders of amendment and revivor were made; the bill was answered; a decretal order was made, staying proceedings in the probate court, and referring to the register the matter of taking and stating the account of the administration. The account was never taken; but all else, save
We have been referred to a few of tbe authorities in regard to election of remedies, which state, as a principle, that tbe bringing of a suit, in tbe one right, is an election to abandon tbe other.—See Sawyer v. Wood, 3 Johns. Ch. 422; George v. Bossings 15 B. Mon. 565; Bond v. Hopkins, 1 Sch. & Lef. 441. See, also, 1 Tidd’s Pr. 10; Edw. on Bailments, 132; Bohannan v. Pope, 42 Maine, 97; 3 Com. Digest, 541; Lewis v. Dubose, 29 Ala. 221. None of tbe cited cases, however, presented tbe question of a suit commenced, and afterwards dismissed before final judgment. In fact, tbe remarks of tbe court in the cases from 42 Maine, 1 Sch. & Lef., 29 Ala., and 3 Johns. Ch., were made simply by way of illustration; for tbe question did not arise in either of those cases. Examining tbe cases referred to by Edwards, it will be seen that bis attention was directed to an entirely different subject. In tbe case from 15th B. Monroe, tbe suit then in process of adjudication was tbe 'Suit which it was held determined tbe election. That suit bad been decided in tbe court below, and was then under consideration on appeal. In tbe case of Lewis v. Dubose, tbe question did not arise; and it is not an authority for tbe position contended for. Hence, we feel authorized to say no authority has been cited in support of this argument, that is directly to tbe point; nor bave we been able to find any.
In very many cases it has been decided, that making a disposition of property in tbe one right, or recovering judgment, and obtaining satisfaction, does determine the election; for, in such case, tbe parties can not be placed in statu quo.—See 9 Viner’s Abr. 363; 3 Com. Dig., supra; 3 Bac. Abr. 314; Hooks v. Smith, 18 Ala. 338; Mosely v. Wilkinson, 24 Ala. 416; Fireman's Ins. Co. v. Cochran & Co., 27 Ala. 236; Butler v. O'Brien, 5 Ala. 316; Sheppard v.
There is a class of cases in which a party, having an election of remedies, forfeits the one by interfering actively in the other, with a view to giving it effect, or of obtaining a benefit under it. They stand, however, on their own peculiar principles; and in none of them had the proceeding been dismissed; nor, indeed, had the party, who claimed the right to elect, the power of dismissing the proceedings. See Wilson v. Matthews, 32 Ala. 350; McCarty v. Gibson, 5 Grat. 307; Donelly v. Corbett, 3 Sel. 506; Phillips v. Allen, 8 B. & Cres. 477; Clay v. Smith, 3 Pet. 411; Norton v. Cook, 9 Conn. 314; Jones v. Horsey, 4 Maryland, 306; Lanahan v. Latrobe, 7 Md. 268; Blackman v. Green, 24 Ver. 17. This class of cases is controlled by principles that have no application to the question before us.
Where the acts relied on are of doubtful and indeterminate character, or are capable of being annulled and the parties left in statu quo, the courts will not force conclusions in order, thereby, to hold that an election has been made. In the case of Reaves v. Garrett, the dispositions of Mr. Garrett’s will left in his widow, afterwards Mrs. Beaves, the right to renounce the bequests of his will, and to claim certain slaves in her own right; or, to abide by the terms of the will, and surrender her title to her slaves. The will appointed her executrix. She propounded the will for probate, and had it proved, qualified as executrix, acted in that capacity for about fifteen months, returned the slaves in her inventory of the estate, charged herself in annual settlement with their appraised value, kept possession of all the property until her resignation as executrix, and once
Where there is a privilege of election, the authorities go very far in maintaining the right of the party to be fully and perfectly informed of all the matters which go to make up the respective values of the interests, between which a choice is to be made, and of the facts as bearing on the question of those values. In a case where a widow had a right of election between the provisions of her husband’s will and the rights which the law Would.confer upon her, the court said, “Until the settlement of the estate, the law gives the wife the election. She has a right to know what she has to elect. Election is choice, and she is entitled to know correctly what she has to choose between. The eases have gone so far, that after the wife has made her election, and has received benefits under the will, she has been-allowed to retract and resort to her legal rights, when the estate has turned out differently from what it was believed and stated to be at the time of the election prematurely made.”—Hall v. Hall, 2 McC. Ch. 280. See, also, Harcum v. Hudnall, 14 Grat. 369; Wake v. Wake, 3 Bro. C. C. 255; Blann v. Crocheron, 20 Ala. 320; Ravencroft v. Eyles, 2 Wils. 294; Blann v. Crocheron, 19 Ala. 647; Spivey v. Morris, 18 Ala. 254; 1 Lead. Ca. in Eq. 300 to 303; Coleman v. Adams, at last term.
So jealous is the law of this right of election, when necessary to a full understanding of the facts, it has been decided that the party having the right may file a bill and have an account taken, that he may exercise the right understandingly.—See Pusey v. Desbouvrie, 3 Pre. Wms. 320-1; Butricke v. Broadhurst, 1 Ves. Jr., 161; Kidney v. Coussmaker, 12 Ves. 153; 1 Lead. Ca. Eq. 300. Mistaken or unsuccessful, suits have been ruled not to be an election. Reese v. Kirk, 29 Ala. 409; Deens v. Dunklin, 33 Ala. 47.
But there is a recognized and well-established principle
The administrator, in January, 1844, had advertised, and was about to sell the slaves. The order of court, authorizing the sale, does not specify the purpose of the sale; but the condition of the estate justifies us in assuming that
At the November term, 1844, the distributees petitioned the orphans’ court for an order to divide the slaves of said estate; and at the December term following, the order was granted, and commissioners appointed. Why the division was not then made, the record does not inform us. At the close of the year 1845, another order for division was granted at the instance of Kirkland Harrison, the administrator ; and under this order the slaves were divided, and return made thereof to the February term, 1846, of the orphans’ court, and then confirmed.
Independent of the fact that the sale of the slaves, if made under the orders for that purpose, would have been void, we think there are very satisfactory reasons why the bill in chancery and injunction furnish no excuse to the administrator for keeping up the plantation. Whatever might be the effect of a sale upon the title of the property, as a question of abstract right, under the act of 1809, (Clay’s Dig. 223, § 13,) the administrator had no authority to sell slaves belonging to the estate, unless such sale was necessary to meet the wants of the administration, or to make distribution of the estate. Hence, it is conceivable that an administrator might place himself greatly in fault, while by a sale presenting the forms of law the title of the property would be divested out of the estate. Such was held to be
First: The dower-interest, which exists in a majority of estates, will necessarily detract very materially from the entirety and availability of most landed estates, and hinder the successful cultivation of most plantations. — Olay’s Digest, 172; Code, §§ 1359 to 1367. Second: Authority to keep up the plantation during the year of intestate’s death, [Olay’s Dig. 196, § 19; Code, § 1900,] and afterwards for a definite period, on obtaining an order of court therefor, [Olay’s Dig. 198, § 30 ; Code, § 1902,] furnishes strong persuasive argument to show that, in the absence of such fact, and without such order, the estate should not be kept
But this question is settled by the decisions of this court} and by the uniform practice of the country.
In the case of Steele v. Knox, 10 Ala. 614, a case which presented the question now before us, our predecessors said: “As the distributees have elected to charge him [the administrator] with the value of the use of the properly, he must pay hire for the slaves, according to the usual rates of hiring such slaves, in the customary mode during that period, and will be entitled to compensation for taking care of such as were helpless. And as he had the power to enter upon the land and rent it in virtue of the statute of 1839, he must be considered as having entered as administrator, and is therefore liable for the customary rent, in his official capacity, upon this settlement.” See, also, Benford v. Daniels, 13 Ala. 673; McCreliss v. Hinkle, 17 Ala. 465; Smith v. King, 22 Ala. 561; Montgomery v. Givhan, 24 Ala. 588; Stewart v. Stewart, 31 Ala. 207.
We have no hesitation in affirming that the customary mode of hiring in this State, never has justified an administrator in disposing by lease and hire, and by one single contract, of a large plantation with its stock and implements of husbandry, together with more than one hundred slaves. Such contract would carry on its face evidence of mal-administration; for few, if any bidders could be found to compete at such a letting.
If it be shown tbat tbe administrator used tbe money of tbe estate for bis own purposes, then bis estate is responsible for tbe profit made, or for interest from tbe date of tbe use, at tbe election of tbe distributees. — Code, § 1813. If this be not shown, and this question be left as tbe present record presents it, then a different rule prevails. It is said tbat no absolute rule can be laid down, applicable alike to all cases ; but tbat it must be varied according to circumstances.—See Dunscombe v. Dunscombe, supra, and Royall v. McKenzie, supra, and authorities cited. It was certainly tbe duty of tbe administrator to retain tbe 'moneys not used in paying debts, until tbe expiration of eighteen months from tbe time of bis appointment, unless tbe known condition of tbe estate justified bim in reporting tbe estate solvent at an earlier day. — Code, sections 1821, and 1771-2. After-
"We have not been able to discover the reasoning by which the probate judge ascertained and decreed the amount of the corn and fodder ; but it may be correct. On the subject of the cotton seed, we have the same remark to make, as to quantity; and, under the testimony reported, we doubt if the cotton-seed should have been considered as a marketable commodity, or any charge made for it.
In the account of sales of the cotton crop of 1843, there appears an account due the merchants, which was probably contracted for needed supplies consumed on the plantation during the year. If so, it should be allowed as a credit to the administrator.
The account of A. Borland should not have been charged against the administrator, under the proof found in the record. If we mistake not, this account was charged .. twice. Neither should the administrator have been chargbcf, with the note of J. J. McBae, under the proof made.-See
There is evidence that tbe carpenter Jack, or Jackson, was publicly hired out for that part of tbe year 1843 which remained after intestate’s death, for fifty-five dollars; and that Sam was hired for about tbe same amount. If this be tbe case, tbe administrator should not have been charged a greater sum for their hire for that time.
On tbe subject of negro hire for tbe years 1844 and 1845, we append to this opinion a catalogue of names and prices, which, we think, to be correct, according to the weight of the evidence. In fixing the hires of the women, allowance is made for abatement of the price-value, caused by pregnancy, or the encumbrance of nursing infants; and, hence, no farther credit should be allowed the administrator on that account.
We have disposed of every question which we deem material.
Reversed and remanded.