Taylor v. Robinson , 69 Ala. 269 ( 1881 )

SOMERYILLE, J.

The purpose of the bill filed by the appellants is to charge the estate of William Robinson, deceased, with a clevastmit alleged to have been committed by him as administrator in the management of the estate of Byrd Brandon, of which the appellant Taylor is administrator de bonis non with the will annexed. The other complainants, who unite with Taylor as co-complainants in the bill, were legatees under the .said will. William Robinson died in the year 1852, during which year John and James Robinson were appointed his administrators, and after acting in that capacity over six years, they .resigned in- December, 1858, when the appellee was immediately appointed to succeed them.

The first question is, whether this claim for a devastmit is within the operation of the statute of non-claim, as against the legatees or heirs who are seeking by bill to enforce distribution. The chancellor so held, sustained the plea of the statute of non-claim, and dismissed the bill. It is our judgment that his decision is free from error.

The case of Fretwell v. McLemore, 52 Ala. 124, seems conclusive of the question. It was there held, in an action by certain heirs against the estate of a surety, that a claim growing out of the misfeasance or malfeasance of his principal, whether judicially ascertained or not, would be barred by the statute of non-claim, unless presented to the administrator of the surety within the period of eighteen months. It was also ruled, in the same case, that the claim of “ heirs or legatees claiming as such,” which is excepted from the statute of non-claim by section 2598 of the Code, is the claim of title to the specific property of the estate in the hands of the administrator, unadmindstered and 'unconverted, and that the exception has no reference to a peenniary demand created by a devastavit, or to a default of the administrator creating the mere relation of debtor and creditor. This case is so well reasoned that we can add nothing to the argument, and it has been repeatedly approved by this court. McDowell v. Jones, 58 Ala. 25; Owen v. Corbitt, 57 Ala. 92 Foster v. Holland, 56 Ala. 474. The case of Harrison v. Harrison, 39 Ala. 489, maintaining the contrary doctrine, was, in our opinion, unsound in principle, and was properly overruled.

The claim here sought to be enforced was not presented against the estate of william Robinson within the time prescribed by the statute, which is required to be within eighteen months after the grant of letters of administration, or after the accrual of the claim; or, where minors are concerned, within eighteen months after the removal of their respective disabilities. — Code of 1876, §§ 2597-8.

Conceding that the alleged presentation was made within the requisite time, so far as concerns John I). Brandon, who was the youngest of the. legatees or heirs, it was too late for his co-complainants, against whom the bar of the statute was complete. The rule is well settled in equity, that all the parties who join in a suit must be entitled to recover, or none can. The failure of one is the failure of all.' — James v. James, 55 Ala. 525; Hutton v. Williams, 60 Ala. 107; Hardeman v. Sims, 3 Ala. 747.

The averments of fraud and fraudulent concealment made in the bill against the administrator, in reference to the devastavit, can give no aid to the case. It was expressly held in Yniestra v. Tarleton, 67 Ala. 126, that fraud on the part of the deceased creates no exception as against the operation of the statute of non-claim. Among the enumerated exceptions the legislature has seen fit not to specify fraud, and the judiciary department, is incompetent to do it.

As the evidence in the record probably shows a presentation of the claim in controversy, so far as one of the complainants, John D. Brandon, is concerned, the decree of the chancellor will be amended so as to dismiss the bill without prejudice as to him, and, as so modided, the decree will be affirmed.

BriOkell, C. J., not sitting.