Floyd v. Clayton , 67 Ala. 265 ( 1880 )

BRICKELL, O. J.

— The presentation of a claim against the estate of a deceased person, to prevent the bar of the statute of non-claim, may be made in three different modes : 1. The presentment of the claim, or of an accurate description thereof, may be made to the executor or administrator in person. 2. Within eighteen months after the grant of administration, or after the accrual of the claim, a statement of the claim may be filed by the creditor or claimant in the office of the judge of probate, in which letters testamentary, or of administration, were granted. 3. The claim itself may, within that period, be filed in the office of the judge of probate. If either of the latter modes of presentment is adopted the statute requires the statement, or the claim to be docketed, with a note of the time of such presentation, and if required, a statement must be given by the judge, showing the time of presentation. — .Code of 1876, § 2599. If, instead of filing the claim itself, a statement thereof is filed, the making of such statement is the act of the creditor or of the claimant, and not of the judge of probate, or of any ministerial officer, charged with the duty of making the statement. The statute simply gives to the creditor or claimant the privilege of substituting for a presentation to the personal representative, in person, or the filing of the claim itself, the filing a statement of the claim. The statement filed by the creditor or claimant, must not be so indefinite and uncertain, that on inquiry by the personal representative at the office of the judge of probate, and on examination of it, he could not ascertain the real character of the claim, and whether it imparts a claim for which the estate of the decedent was liable. Technical accuracy, the certainty of description essential in pleading, may not be observed, but the statement must, of itself, inform the personal representative, on an inspection of it, of the nature, character, and amount of the liability it imports, and must distinguish it with reasonable certainty from all similar claims. — Hallett v. Br. Bank Mobile, 12 Ala. 193; Posey v. Decatur Bank, Ib. 802; Halfman v. Ellison, 51 Ala. 543; Bibb & Falkner v. Mitchell, 58 Ala. 657.

The docketing of this claim, the entry on the docket, or register of claims, by the probate judge, tested by the rule stated, is too vague and indefinite. It would not impart to the personal representative information that the claim intended was a promissory note made by the decedent in his life, or of its amount, or time of payment, or to whom payable, so that direction would be given to his inquiries into its validity and justness. And if this were the only presentment, and was the act of the party, it would not save the bar of the statute of non-claim. But that entry was the act of the .probate judge, and not of the creditor. The creditor discharging a duty incumbent on him, filed the note, the claim itself, and not a statement of it, as a presentment. The docketing of the claim, was the duty and act of the probate judge, to be performed after the creditor had filed the note. The rule of law, founded in necessity, and of general application, is, that when a party discharges a duty imposed by law, the omission or neglect of a public officer, in the discharge of a subsequent duty, shall not be invoked to his prejudice. — Halfman v. Ellison, supra. The filing of the note, notwithstanding the vague and indefinite entry of it, on the docket'of claims, operated as a presentation on the day of its filing. The personal representative ought not to have looked alone to that entry. Imperfect as it is, it ought to have put him on the inquiry, and inquiry would have led him to the knowledge that the note itself was filed, and not a statement of it.

When a statement of the claim, or the claim itself, is filed in the office of the judge of probate, the statute contemplates that the one, or the other, must remain of file. During the whole of the eighteen months, the personal representative has the right of examining the office of the judge of probate for claims. And even after that period has' elapsed, it is important for him to know the claims which have been presented. He cannot, without such knowledge, proceed safely in the administration. If, therefore, the creditor, after filing the claim itself, should, within the eighteen months, withdraw it from the files, and not within that period restore it, leaving there no sufficient statement or memorandum of the claim, it would operate an abandonment of the presentation. The commencement of a suit within the statutory period, and its continued prosecution, operates as a presentment of the claim on which the suit is founded. — Hunley v. Shuford, 11 Ala. 203. But if the suit is voluntarily abandoned, it will not operate a presentment. — Bigger v. Hutchings, 2 Stew. 445; Dilbore v. Moorer, 14 Ala. 426; Pipkin v. Hewlett, 17 Ala. 291. The presentment would deceive and mislead the personal representative, if the creditor was allowed to withdraw the claim from the files, leaving no statement or memorandum, informing the personal i*epresentative of the fact of presentment, and of the nature and character of the claim, upon which there could be reliance and action. If there be a necessity for the withdrawal, the creditor has but to supply its place, by placing, in lieu of the claim, a sufficient statement of it on the files. Though the note was filed, if it was withdrawn within the eighteen months by the creditor, and not within that period restored to the files, and no other memorandum or statement left, than the vague, indefinite-entry found on the docket, there was not a presentment which would avoid the bar of the statute.

There is a manifest distinction between grants of administration which are void, ab initio, and grants which are voidable and revocable. In the first case, whatever may be done under the grant, is without validity. In the other, whatever is rightfully done before revocation, is of the same validity as if the grant was rightful. — 1 Williams Ex’rs, 517, et seq. A grant of administration, as in case of intestacy, when the deceased left a will, which had not been admitted to probate, is voidable, not void. — Jennings v. Moses, 38 Ala. 402. Acts in which third persons have an interest, done by the representative under a voidable grant, are, generally, valid, and bind the executor. — Kittredge v. Falum, 8 N. H. 98; Bigelow v. Bigelow, 4 Ohio, (Hamm.) 138; appeal of Robert Peebles 15 Serg. & Rawles, 39; Benson v. Price,, 2 Nott & McC. 577; Foster v. Brown, 1 Bailey, 221; Price v. Nesbit, 1 Hill Ch. 461. The creditor here, had no knowledge of the existence of the will; he was never put on enquiry, whether the de cedent died testate, or intestate. Upon the records of the court of probate, as to the grant of administration, a court of general jurisdiction, its judgments imparting verity and jurisdiction, be found a grant of administration. Until that grant was revoked, he could safely deal with tbe administratrix as tbe rightful representative, and rely upon its validity. It was his right to make presentment of his claim to her, and the presentment is as operative against the executor subsequently taking probate of the will, and obtaining letters testamentary, as if tbe administration had been rightful, and be was a succeeding administrator de bonis non. From the administratrix the creditor could rightfully have received payment, and payment by her would have been an extinguishment of tbe demand as to the estate. Having the light to demand and receive from her payment, be bad a corresponding right to make presentment to her, and the presentment saved tbe bar of tbe staute of non-claim, though it was not renewed to the executor. The statute does not contemplate renewed or repeated presentments, as often as there may be changes of tbe administration.

The rulings of the Circuit Court were not in conformity to these views, and its judgment is reversed, and the cause remanded.