May v. Parham , 68 Ala. 253 ( 1880 )

BBIOKELL, C. J.

1. The judgment against the testator at the time of his death, now sought to be charged on the lands devised, was a mere cause of action against the personal representative, incapable of revivor otherwise than by suit at law in the ordinary form. — Code of 1876, § 2633. There is no averment in the bill, that the creditor has resorted to, and prosecuted any legal remedy against the administrator with the will annexed, to establish the existence of his demand, and to enforce the payment thereof. The proceedings for the substitution of the lost or destroyed record of the judgment was not, in any proper sense, a suit on, and for the recovery of the judgment. Its whole scope and object was the re-establishment of the primary and best evidence of the record, in itself conclusive and indisputable, so that in subsequent proceedings to enforce the judgment, there would be no necessity for resorting to evidence of an inferior degree.

The case is, then, that of a general creditor, without a lien resorting to a court of equity, to enforce satisfaction of his demand from lands devised. The personal estate is the primary fund for the payment of debts; and though lands descended or devised may, if that estate be deficient, be charged, yet the heir or the devisee has an equity to insist on its application in exoneration of the lands. Hence, a court of equity, as a general rule, will not aid a general creditor to subject lands devised or descended, unless an original deficiency of the personal estate is shown ; or it appears, that the personal representative has wasted it, and that all legal remedies against him and his sureties have been exhausted; or that such remedies would be unavailing and fruitless in consequence of their insolvency.—Darrington v. Borland, 3 Port. 9; Pyke v. Searcy, 4. Port. 52; Ledyard v. Johnston, 16 Ala. 548.

The only averment of the bill touching this matter is, that “ there are now no personal assets of the estate of said Moody H. May, deceased, but the whole thereof which were of said estate have been appropriated by said administrator, and the said administrator, and each and all of his sureties on his bond, as such administrator, are wholly insolvent.” The averment is not of a want or deficiency of personal assets at the death of the testator, or at the time of the grant of administration, but more than ten years thereafter, when the bill was filed. But it may be regarded as sufficient to excuse the creditor from a pursuit of legal remedies against the administrator and his sureties, and with sufficient certainty shows that such remedies would be unavailing. The averment is affirmative; it is an indispensable ingredient of the right of the creditor to the aid of the court, and the burthen of proving it rests upon him, unless its truth is admitted. The devisees are infants, incapable of making the admission, and there is a want of proof of a material fact — the insolvency of the administrator, and of his sureties. Without proof of that fact, the court ought not to have charged the lands with the payment of the debt. It is scarcely necessary to say, that if the answer of the administrator can be regarded as admitting the fact, it is not evidence against the devisees.

2. The heir or the devisee, when a creditor seeks to subject lands which have passed into his possession, has an equal right with the personal representative to insist upon the statute of non-claim, as a bar to the demands.—McBroom v. Governor, 6 Port. 32; Thrash v. Sumwalt, 5 Ala. 13; Fretwell v. McLemore, 52 Ala. 124. When the statute is pleaded at law, or in equity, the onus of proving presentment lies on the creditor.—Evans v. Norris, 1 Ala. 511. The written acknowledgment by the personal representative of the fact of presentment, made before the statute creates a bar, is evidence of the fact of presentment against a subsequent representative, and against the heir or devisee.—Starke v. Keenan, 5 Ala. 590. The presentment of the claim of the appellee does appear from the answer of the administrator, when read in connection with the evidence. But otherwise than from tbe admission in tbe answer of tbe administrator, it is not shown when the letters of administration were granted, and, of conséquenee, tbe period from which the bar. of tbe statute is to be computed. That admission can .not be received as. evidence against the devisees.. As to- the mi, the appellee has-, not proved, consequently, a presentment of tbe claim within eighteen months.

•The errors we have pointed out compel a reversal of the decree.

Reversed and' remanded!