16 Ala. 479 | Ala. | 1849
Lead Opinion
The question presented by the record is, whether the creditors of Larkins’ estate, Middleton and Mock, who had presented their claims to Maull, the administrator, within eighteen months, but who had not filed them with the clerk of the Orphans’ Court within six months after the estate had been declared insolvent, should have been allowed upon the final settlement of the estate to show that the estate was then solvent, by proving that the administrator had failed to charge himself with the crop of 1843, and with eight slaves specially
In the opinion of the court below, the failure of these contesting creditors to file their claims within six months after the estate was declared insolvent, was a complete bar, notwithstanding the estate at the time of final settlement may have been perfectly solvent. We readily concede, that all the creditors who- fail to exhibit their claims within six months after the estate is declared insolvent must be excluded, and their claims barred, if the estate continues insolvent up to the final settlement. That is, such claims are barred- as against the assets of an insolvent estate. Such is the decision in Hollinger v. Holley, in 8 Ala. Rep. 454, as I understand it. But that the decree of insolvency, predicated as it is upon the report of the administrator — which report in the nature of things must in many cases be incorrect — shall be final and conclusive upon the court and all the creditors, notwithstanding the estate may afterwards turn out to be perfectly solvent, is opposed, in my opinion, not only to our previous decisions, but to the spirit of our legislation and to all the analogies of the law.
By the act of 1843, (Dig. 192, § 2,) the administrator, &c., when the estate is in his opinion insolvent, is required to file an allegation of the fact, praying that it may be so declared, which allegation is to be accompanied by three schedules thereto attached, viz: one is to contain the full statement of all the goods and chattels, ehoses in action, and personal estate of the deceased, with the estimated value thereof; the second, the real estate with its location, the nature of its tenure,'and its estimated value; and the third, a statement of all the claims against the estate, their nature and amount, and the residence of the creditors. Upon the filing of such allegation, a day is set apart by the clerk or judge for declaring the estate insolvent ; notice is to be given by publication, See-., and if no objection is made by the creditors on the day, the decree passes as a matter of course, but if objection is made, an issue is formed and the question of solvency vel non tried by a jury.— The act does not provide for the litigation between the creditors as to the justness of their respective demands upon this issue, but contemplates that their claims shall be aftenva/rds filed within six months; and the mode of bringing on the coa-
To hold that these creditors are barred for failing to present their claims in six months after the decree of insolvency, when the estate is on final settlement solvent, is to dispense with the statute of 1815, usually denominated the statute of non-claim, which is the only statute prescribing in terms a bar for failing to present claims, and which provides that unless they are presented within eighteen months from the grant of administra* tion, they shall be barred. — Clay’s Dig. 195, § 17. I am then of opinion that Middleton and Mock, who had presented their claims within eighteen months, should have been allowed to prove on the final settlement that the estate was solvent, and that the court erred in refusing to permit them to show that the admiaistrator had received or should have been charged with assets which had not been returned, and for which he had in no wise accounted. A different conclusion would cut off many creditors, who, charged only with constructive notice of the allegation of insolvency, and without any notice in fact, have failed to contest with the administrator the truth of his allegations of the insolvency of the estate. It would, in such cases, be holding out inducements to administrators to report estates insolvent, on a partial ascertainment of their true condition, with the hope that should the effects turn out sufficient to pay all the debts, they should retain the surplus after paying the creditors who have come in and filed their claims in six months under the act of 1843; for if the decree of insolvency be final and conclusive, and may not be gainsaid on final settlement, then as the distributees cannot share with creditors in
The decree of the Orphans’ Court is consequently reversed and the cause remanded.
Concurrence Opinion
I cannot concur in the opinion of the court. I think it too clear to admit of argument, that a decree of insolvency, rendered in accordance with the provisions of the act of 1843, is final and conclusive on all the creditors, and neither they nor any one else can be permitted again to litigate that question. The fact of insolvency by the decree be-cómes res adjudicata, and is equally as conclusive on all parties as any other sentence or judgment pronounced by a court of competent jurisdiction.
The only question, therefore, is, whether any creditor can be permitted (if he has failed to file his claim within six months after the estate has been declared insolvent) to litigate any question with the administrator, wfith the view to swell the amount of the assets and thus create a larger dividend. If a creditor who has neglected to file his claim with the clerk within the time prescribed by law can be permitted to do this, has he not the right to show that the assets are sufficient to .pay all the debts, and thus re-litigate the question of insolvency?
In the case of Hollinger v. Holley, 8 Ala. 454, this act was fully considered, and the court held, that if a creditor neglected to file his claim within six months after the. decree of insolvency, in the office of the clerk of the Orphans’ Court, his
It is however urged that the case of Phelan v. Phelan, 13 Ala. 679, is opposed to the case of Hollinger v. Holley and to the views here expressed. The facts of that case were peculiar. The creditor who had not filed his claim had obtained a judgment at law against the administrator before the decree of insolvency. It afterwards appeared, that the estate was solvent, and after paying all claims that had been filed in the clerk’s office, there was a large balance in the hands of the administrator, who then paid all the judgments against him but one, which had not been filed with the clerk within the prescribed time, and did not contest the payment of this one, but insisted as against the right of the distributees to retrieve the amount of the judgments he had paid, as well as the amount of the one not paid, but which he did not contest. We held that he ought to be permitted as against the distributee^ to retain those amounts.
If it be conceded that this decision can be sustained, which I think is very doubtful, yet it will not sustain the position that a creditor can litigate on a final settlement the question of the insolvency of the estate, to avoid the consequences resulting from a failure on his part to file his claim within a pres'cribed time. Plere the administrator insists on the failure of the creditor to file his claim as a bar to all litigation against him in the Orphans’ Court. To hold that this does not create a bar, when pleaded as such, I think not only overrules the case of Hollinger v. Holley, but -, is directly repugnant to the intention and design of the act of 1843.