Shiver v. Rousseau

68 Ala. 564 | Ala. | 1881

BRIOKELL, C. J.

1. The plea of insolvency of the estate is not good in bar to the action, as it does not by affirmative averments show that the declaration of insolvency was prior to the commencement of the suit. When during the progress of a suit against a personal representative, founded on a debt or demand or liability of the testator or intestate, the estate is declared insolvent, the fact may be pleaded specially; but the only effect is, that, if judgment is rendered on the other issues against the personal representative, execution thereon can not issue, and to the court of probate the judgment must be certified for allowance. But if, before suit commenced, tbe estate has been declared insolvent, the insolvency forms a good plea in bar. The effect of the declaration of insolvency is to draw within the exclusive jurisdiction of the court of probate all claims, demands and liabilities chargeable on the assets, not the subject of pendings suits.—Edwards v. Gibbs, 11 Ala. 292. Tbe want of an averment that the declaration of insolvency was prior to the commencement of this suit, is not, however, assigned as cause of demurrer. The causes assigned resolve themselves into the single proposition, that the insolvency of an estate is not pleadable in bar of an action founded on a judgment rendered against the personal representative. The proposition is erroneous.—Sharp v. Herrin, 32 Ala. 502. Such a judgment is a claim which must be filed in the court of probate, and if not filed, would be subject to the bar of the statute against claims not filed within nine months after the declaration of insolvency.

2. The remaining pleas show, that before the commencement of the suit the executor had resigned, and in the court of probate had made a final settlement of his administration, accounting for assets coming to his hands to be administered. The balance in money ascertained to be due on such settlement, it is averred, was. paid to the probate judge. The statute provides that “no executor nor administrator can allege his resignation in defense to any action or proceeding, without an averment that he has settled the accounts, and delivered over the assets of the estate, as required by law.” (Code of 1876, § 2617.) The payment to the probate judge, of the decree rendered against the executor on final settlement, was authorized by the statute. (Code of 1876, § 699). For that balance, the only unadministered assets remaining in his hands, the administrator accounted as required by law, by the payment to the probate judge. It was not his duty to procure the appointment of a successor, that he might pay it over to him, nor could his relation or liability as executor be continued until the appointment of a successor was made. The demurrers to the several pleas were not well taken, and ought to have been overruled.

Reversed and remanded.