Hunt v. Curtis

44 So. 54 | Ala. | 1907

TYSON, C. J.

-This appeal is from a decree dismissing a petition, exhibited by the administratrix of the estate of England, to sell the lands belonging to said estate for the payment of debts. On the trial the deed, offered for the purpose of showing title in the intestate to an undivided half-interest in the lands at the time of his death, whicli lands are sought to be sold, was excluded on the objection of the contestants. In this there was error. The deed was clearly competent for the purpose for which it was offered. — Section 186, Code 1896. Nor ivas it objectionable on account of the description of the land, which is clearly not void for uncertainty.

In the petition the name of England, the intestate, is given as “James L. G.,” while in the deed the name is “James L.” England; the letter “G.” being omitted. The law does not recognize the omitted letter as being a part of the name.- — Edmundson v. State, 17 Ala. 179, 52 Am. Dec. 169; Pace v. State, 69 Ala. 231, 44 Am. Rep. 513; Woods v. State, 133 Ala. 162, 31 South. 984. Identity of name is presumptive of identity of person. In the absence of evidence showing that James England, the intestate, was not the person named in the deed, it must he presumed that he was. But, independently of this, the testimony identified him as being one of the grantees in the deed.

The trial judge excluded the claim filed in his office by the heirs at law of Mrs. Hutchinson, deceased, against the estate of England, showing an indebtedness by England to Mrs. Hutchinson of $1,897.40. The claim was properly verified, and was not objectionable, unless it can he held that it was not legally filed by a person authorized under the law to do so. It appears from the decree that it was on this account that the ruling was made. In this there was also error. It will not be doubted that it was incumbent upon the administratrix to establish that there were valid existing debts against the estate. To this end, therefore, it was necessary to show that the claim for such debts had been properly presented by some person authorized to present it. It has been uniformly held by this court that any person having an interest in the claim, either legal or equitable, may make the presentation as required by the statute of nonclaim. — Section 3130, Code 1896; Cook v. Davis, 12 Ala. 551; McDowell v. Jones, 58 Ala. 25, 35. In the case last cited, while the court held that the person who presented the claim was without authority to do so, because -his appointment as administrator was void, still it says: “If that appointment had been valid, the presentment of the claim could have been made by him, as it could also have been made by any of the legatees entitled to distribution.” This is a clear recognition of the right of the heir, who has, as has a legatee, an equitable interest in the personal assets of the estate, to make the presentation. That the heir at law has an equitable interest in such assets is also well settled. — Wood v. Cosby, 76 Ala. 559; Teal v. Chancellor, 117 Ala. 612, 23 South. 651.

In vieAV of the testimony offered by contestants, that Mrs. Hutchinson had received rent cotton from these lands .prior to England’s death that should have been credited upon the debt presented against the estate, it was entirely competent for the administratrix to show that Mrs. Hutchinson owned lands adjoining, and that the rents received by her were from those lands, and not from them. In support of her right to show this, it was proper to admit the deed to those lands.

Witnesses should not be permitted to give their opinions as to whether the personal property is sufficient to pay debts, but should depose to facts, and the court should draw the conclusion. — Miller v. Mayor. 124 Ala. 434, 26 South. 892. The trial court’s ruling on this point Avas correct.

On the authority of Poole v. Daughdrill, 129 Ala. 209, 30 South. 579, the administratrix is not required to prove the existence of debts by depositions of witnesses, but may do so by oral examination of the Avitnesses. Of course, the value of the personal property must be established by proof of disinterested witnesses taken by depositions.

For the errors pointed out, the decree must be reversed, and the cause remanded.

BeArersed and remanded.

Haralson, Simpson, and Anderson, JJ., concur.