61 Ala. 340 | Ala. | 1878
From the earliest period of our legislative history, it has been a settled policy to provide a simple and summary remedy, in the court of probate, granting letters testamentary, or of administration, for the marshaling and distribution to creditors of the assets of an insolvent estate. The personal representative when satisfied of the insufficiency of the assets for the payment of debts, is required in a particular mode to make report of the fact to the court, and of the report notice must be given creditors, who are entitled to contest its truth. If there is ij,o contest of its truth, or if it is unsuccessfully contested, a decree of insolvency is pronounced by the court. The decree ascertains finally the status of the estate as between the personal representative and creditors. — McGuire v. Shelby, 20 Ala. 356; State Bank v. Ellis, 30 Ala. 478. The effect is, to draw to the court exclusive jurisdiction of all legal demands against the decedent, not the subject of pending suits in other tribunals, at the time of the rendition of the decree. Suits then pending, may be prosecuted to final judgment, but on a suggestion, or special plea of the insolvency, the judgment rendered therein is certified to the court of probate, and no execution can issue on it. All the creditors, (excepting those whose claims are in suit at the time of the declaration or decree of insolvency,) are required within nine months after the decree or declaration, to file their claims in the court of probate verified by the oath of the claimant, or some other person who knows its correctness; and a failure to file, by the words of the statute, operates a perpetual bar against the claim. — Code of 1876, § 2567; Puryear v. Puryear, 34 Ala. 555; Sharp v. Sharp, 35 Ala. 572; Bell v. Andrews, ib. 538; Pay v. Thompson, 43 Ala. 434; Murdock v. Rosseau, 32 Ala. 611; Hollinger v. Holley, 8 Ala. 454. The exception of claims on which suits are pending, from the bar of the statute, is the result of judicial decision, which, though in conflict with former decisions, perhaps, ought not now to be disturbed. — Erwin v. McGuire, 44 Ala. 499; Murdock v. Rosseau, supra; McDougald v. Dawson, 30 Ala. 553. The end
The purpose of the statute is to draw within the jurisdiction of the court of probate all claims against the decedent, and all controversies as to the validity of the claims preferred. Yet all is in furtherance of a speedy distribution of the assets to the creditors entitled to receive them. The claimant is required at the peril of the loss of his demand to file it within a prescribed period, and as evidence of his good faith, and of the justice of the claim, it must be verified. The verification is ex parte, and is not matter of evidence against the administrator, or other creditors, who may assail the validity and justness of the claim. An opportunity to controvert its correctness by the administrator, or by other creditors, the statute affords. The same policy which demands that within a particular period, the claim should be filed, requires that there should be a period within which the contestation of their correctness should be made. The speedy settlement and distribution of the assets, could not be otherwise promoted.
The statute therefore requires that if no opposition to a claim filed, is made by the administrator, or by any other creditor, within twelve months after the declaration of insolvency, by filing objections thereto in writing, the claim must be allowed. — Code of 1876, §§ 2574-5. The allowance of the claim, in the absence of an objection within the prescribed time, is a right of the creditor secured by the statute. — Hardy v. Meachem, 33 Ala. 457; McNeil v. Mason, 20 Ala. 772. As to all matters of objection addressed to the validity or justness of the claim, which exist at the expiration of the period prescribed for filing objections, this is the effect of the statute. Though the creditor is entitled to an allowance of the claim free from, or without regard to such objections, the claim is not allowed, it is not sanctioned by the judgment of the court, its amount is not ascertained and declared, until the court renders a decree in favor of the creditor for his rateable proportion of the assets in the hands of the personal representative. After the expiration of the period for filing objections, and before the rendition of this decree, facts
The objections to the claim of the appellant, were of matters occurring after the period prescribed for filing objections, and if they are well founded — if they constitute a valid defense against the claim, it was the duty of the court to entertain them.
The claim of the appellant is for moneys received by the intestate of the appellee, Herbert, of the corpus of the appellant’s statutory separate estate, received by the intestate as her husband and trustee. After the filing of the claim, and the expiration of the period for filing objections to its allowance, the appellant filed her bill in equity averring the intestate had used the moneys in the purchase of certain lands and in making improvements thereon. Further averring a sale of the lands by the administrator-in-chief under a decree of the Court of Probate, the payment of the purchase-money to him, and praying that the said purchase-money be declared trust funds and appropriated to the payment of her claims. A final decree was rendered declaring the appellant was entitled to recover said purchase-money, and the same not equalling the claim of the appellant, when paid was to be credited thereon. Payment thereof having been made, on these facts the appellee objected to the allowance of the balance of the claim, and to a decree distributing to the ap