Smith v. Fellows , 58 Ala. 467 ( 1877 )

STONE, J.

“All claims against the estate of a deceased person must be presented within eighteen months after the same have accrued, or within eighteen months after the grant of letters testamentary or of administration; and if not presented within that time, are forever barred. — Code of 1876, § 2597.

The provisions of the preceding section do not apply to minors, or persons of unsound mind, who are allowed eighteen months after the removal of their respective disabilities, or to heirs or legatees claiming as such.” — lb. § 2598. The provisions of the preceding sections, with some modification not material to this ease, have been of force since 1815 — before we had a State government; and they have been frequently construed in this court. The purpose of this statute was to promote a speedy, safe, and definitive settlement of estates, by giving the personal representative notice and knowledge of all claims against the estate in his hands. Having such knowledge, he can determine advisedly when it is his duty to report the estate insolvent; and, at the end of eighteen months, if the claims presented are not equal to the available assets, he can safely pay debts, or make distribution, total or partial, as the condition of the estate may wrarrant. Moreover, such presentation informs him whether or not the claims against the estate exceed the amount of its personal assets, and whether or not he can safely surrender the lands of the estate to the heirs or devisees; or, whether it is his duty to petition for an order to sell the lands for the payment of debts. These patent results of the statute go to make up a policy, to which it is the duty of the courts to give full effect.

What will amount to a sufficient presentation, is a question which has been many times before this court. In Bigger v. Hutchings, 2 Stew. 445-8, our predecessors said, “The original bond, note or contract on which the debt accrued, or at least an abstract or copy, should be presented as evidence of the claim, and if the claim arise on an open account or legal liability, it should be reduced to writing, and be so presented.” So, in Jones v. Lightfoot, 10 Ala. 17, tbe court reaffirmed the rule laid down in Bigger v. Hutchings, supra, and said, “The plain and obvious design of the statute was, to enable distributees and legatees to demand a distribution of the estate at the expiration of eighteen months from the grant of letters, unless it was necessary for the executor or administrator to retain it longer in his hands for the purpose of paying debts. To justify him in so doing, he must be furnished with the evidence that claims exist against the estate and will be enforced. This evidence the statute requires to be a presentment of the claim, and in our opinion nothing short of an actual presentment will satisfy its demand.” In the same case it had been decided that “knowledge merely of the existence of a claim is not sufficient, and to hold that it was, would be, in effect, to repeal the statute.” So, in Hallett v. Br. Bank, 12 Ala. 193, this court ruled that a notice of protest, coming from a notary public, and served on the personal representative, or otherwise shown to' have come to his hands, “will be sufficient to withdraw the claim from the influence of the statute of non-claim, if it describe the bill or note with accuracy, and informs the representative who the holder is, and that he looks to the administrator for payment.” This is put on the ground that the notary, in that capacity, is authorized to receive payment of the bill or note. — See, also, Pharis v. Leachman, 20 Ala. 662, 678; Pollard v. Sears, 28 Ala. 484; Harrison v. Jones, 33 Ala. 258; Fretwell v. McLemore, 52 Ala. 124, 142; Frazier v. Prater, 36 Ala. 691; Budger v. Kelly, 10 Ala. 944; Pipkin v. Hewitt, 17 Ala. 291; Posey v. Decatur Bank, 12 Ala. 802. The result of our rulings on this question is, that to constitute a sufficient presentation, the nature and amount of the claim must be brought to the attention of the personal representative, by some one authorized in law or fact to make the presentation, and the representative must be notified, expressly or impliedly, that the estate is looked to for payment. Uess than this does not meet the purpose of the statute, or sufficiently inform the representative, to enable him to determine whether or not he will pay the claim, whether or not the estate is solvent, and whether or not he will pay debts in full, assent to legacies, surrender the real estate to heirs or devisees, and make distribution. All our decisions are reconcilable with this view, and it maintains the true rule and policy of the statute. This rule has existed too long without material judicial or legislative change, to be open to reconsideration in this court. We feel bound, both by authority and reason, to adhere to it.

We feel also bound, as a corollary of the above, to adhere to that other principle declared in Bigger v. Hutchings, supra, that where the claim is “an open account or legal liability, it should be reduced to writing, and be so presented.” Less than this would not be sufficient information for the representative to base action upon. Moreover, the statute, Code of 1876, § 2599, declares that “the presentation may be made either to the executor or administrator, or by filing the claim, or a statement thereof, in the office of the judge of probate in which letters were granted.” To file such claim in the office of the judge of probate, it must necessarily be reduced to writing, unless it is itself a written contract. It is manifest that the requisites of a valid presentation must, in each of these optional methods, be substantially the same. The object to be attained is in each case the same, and it is common logic to hold that the quantum of information to constitute presentation must, in each case, be substantially the same. It is not unreasonable, therefore, when given facts and circumstances are relied on as proof of personal presentation, to inquire whether they would be sufficient, if filed in office of the judge of probate, and entered on his docket. — See, also, Waddell v. John, 57 Ala. 93.

The charge numbered four, given at the instance of defendant in the court below — appellee here — is strictly in accordance with these views, as far as the same are applicable to the facts of this case. But, in the present case the plaintiff was a minor when Fellows received his appointment as administrator; and consequently the statute of non-claim did not commence to run, until she reached her majority, some months afterwards. The charge numbered four, ignores plaintiff’s minority. It instructed the jury that plaintiff could not recover, “unless her claim was presented to the administrator, or filed in the probate court of the county within eighteen months after the date of the grant of letters to the defendant.” The court then told the jury “they must consider said fourth charge in connection with what had been given in the general charge on the same point.” The general charge on the subject of presentation instructed the jury that to authorize plaintiff to recover, “they must find from the evidence that the claim was presented to the defendant, as the administrator of the estate of Dent Lamar, deceased, by the plaintiff, or by some one authorized to present the claim, within eighteen months after the grant of letters of administration on said estate to the defendant, if the plaintiff was twenty-one years old when said letters were granted; or, if the plaintiff was a minor when such letters were granted, then the claim must have been presented within eighteen months after she became twenty-one years of age.” Tbis general charge stated the law correctly and fully, applicable to the facts of this case; and the explanatory charge given in connection with charge four, rendered it practically impossible that the jury could have been misled. The proposition of the charge excepted to asserts the general principle correctly; and if appellant was apprehensive it would mislead the jury, owing to the special and exceptional facts of this case, it was the privilege and duty of her counsel to ask an explanatory charge. A charge given, which is objectionable alone on the ground of its tendency to mislead, is no ground of reversal. — Hemingway v. Garth, 51 Ala. 530; 1 Brick. Dig. 326, § 10.

We can not perceive that the refusal of the court to allow plaintiff to file an additional count, worked any injustice. The bill of exceptions sets out all the evidence, and there does not appear to have been “any mistake in the Christian or sur-name of either party, sum of money,” &c., as contemplated in section 3157, Code of 1876. The original complaint contained a count for $3,000, had and received. Under this count the plaintiff could recover that, or any less sum, if she proved her cause of action. Claiming more than is proved • to be due, is no obstacle to a recovery in this form of action. And, if intestate received and held the money as trustee, and there were no unsettled matters of account growing out of the trust — (none were claimed in this case) — the action for money had and received would lie. — See Hitchcock v. Lukens, 8 Por. 333; Vincent v. Rogers, 30 Ala. 471. It is worthy of remark that the count offered as an amendment, while it' seeks to charge Lamar’s estate for money received by Mm as trustee, does not aver that any demand of the money was ever made. See complaint in Vincent v. Rogers, supra. On the other hand, if Lamar did hold the funds in trust, and there were unsettled accounts growing out of- it, he could not be held to account for them in an action at law. — -Vincent v. Rogers. In any view we can take of this question, we can not perceive that the amended complaint presented a cause of action, not fully covered by the original complaint, and the City Court did not err in refusing to allow the amendment.

There is no error in the record, and the judgment of the City Court is affirmed.