65 Ala. 576 | Ala. | 1880
— The statute of limitations is fatal to the claims of each of the complainants in this case.
The language of the testator, Raoul’s will, by which he gave and bequeathed all of his estate to his wife and two children, “ after the payment of all his just debts,” according to the prevailing doctrine of English equity jurisprudence, would create a charge by implication, though not a specific charge, on the lands which went into possession of the devisees under the will. — 2 Story’s Eq. Jur. § 1246; Steele v. Steele’s Adm’r, at the last term; Lewis v. Ford, at the present term. “ But,” as said by this court in Lewis v. Ford, supra, “ this doctrine is not recognized as being of force in this State, having been held to be opposed to the spirit and policy of our statutes, which expressly charge the whole property of every decedent with the payment of his debts, and vest the Probate Court with plenary power for subjecting such property to their speedy satisfaction. There is, therefore, no such lien or charge created by the will, as to arrest the running of the statute of limitations. No charge, raised by implication, would have operated to do so, even under the English doctrine. To take tbe debt in question out of the operation of the statute, it would require in the will words creating a specific charge, on an express trust.”
The opposite doctrine, announced in the 12th head-note of Darrington v. Borland, 3 Por. 10, is not in harmony with the cases above cited, or that of Carrington & Co. v. Manning’s Heirs, 13 Ala. 611; and that case, to this extent, is overruled.
The fact that these claims, for the enforcement of which this bill is filed, have been reduced to judgment against the administrator de bonis non of Raoul’s estate, does not preclude the appellees from setting up the defense of the statute of limitations. These judgments are not binding on devisees under the testator’s will, because they “ were not parties to the suits, could not offer testimony, or adduce evidence in opposition to the claims, nor appeal from the judgments.” Garnett v. Macon, 6 Call, 308. Such a judgment is, at most, only prima facie evidence against other creditors, heirs, de
It is insisted by appellant’s counsel, that, inasmuch as Mrs. Raoul was a devisee, as well as executrix, and took under the will a life-estate in the lands devised, a payment made by her ought to bind her interest in these lands. This argument fails in soundness, however, for the reason, that the debts, on which she made the payments, were not hers, but those of her testator; and to hold her bound in any way, without a written agreement or memorandum, subscribed by her as the party sought to be charged therewith, is prohibited by the statute of frauds. — Code (1876), § 2121. And, in Hester & Wesson, 6 Ala. 415, it was held, that even a special promise made by an administratrix, though in writing, would not be binding on her individually, without a new consideration for the promise.
The case of Boykin v. Cook, 61 Ala. 473, is unlike this. There, the devisee was held bound by the judgment, on the ground that he was also the defendant in the judgment, as well as executor. In this case, the judgment is not against Mrs. Raoul, the devisee sought to be charged, but against Baldwin, the administrator de bonis non, between whom and herself there was no privity whatever.
This view of the case renders it unnecessary to consider the other questions raised by the assignments of error.
The decree of the chancellor in sustaining the demurrer is free from error, and is affirmed.
