Rhodes v. Driver , 108 Ark. 80 ( 1913 )

Kirby, J.,

(after stating the facts). It is insisted for appellants that since the administrator of the Keiser estate paid a note to the executor of the Driver estate, which had not been presented for allowance and classification against the Keiser estate within the one year allowed by statute to present such claims, that its payment was wrongful and a diversion of the trust fund in the hands of said administrator, and on that account that appellants were entitled to recover the sum so wrongfully paid from the executors and distributees of the Driver estate. The statute provides, “that all demands not exhibited to the executor or administrator” of an estate, as required by its provision, “before the end of one year from the granting of letters shall be forever barred. ’ ’ Act 438, approved May 28,1907. This act only changed the law relative to the time when claims should be presented against estates, shortening it, and did not dispense with the necessity for proper authentication of claims. Kaufman Bros. v. Redwine, 134 S. W. (Ark.), p. 1193.

The allegations of the complaint are sufficient to show that the note of Keiser made to Driver was not authenticated and presented to the administrator of Keiser’s estate for allowance and classification within the one year allowed by statute from the granting of the letters of administration. And, it further alleged that on the 4th day of March, 1911, that the claim was duly presented and allowed as of that date. The allegations show that the interest was paid upon the note beginning January 8, 1909, and that besides other payments of interest, two thousand dollars of the principal was paid thereon on January 20,1911, before the date of the allowance of the claim as alleged. These payments of interest and principal before the allowance of said claim at the date alleged as well as all those thereafter made were duly reported to the probate court by the administrator, and credit claimed therefor in his settlements, and all of said settlements were by said court duly approved and confirmed.

The administrator is chargeable with and liable to the payment of all assets coming into his hands, and he is the proper party to represent the estate in the matter of demands against it and to contest them if they are not proper claims, and should not be allowed. Hall v. Rutherford, 89 Ark. 553.

In the authentication of claims for presentation and allowance by an administrator of an estate, the law requires an affidavit of the justness of the demand in which it must be stated that nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, naming it, is justly due; and if the executor or administrator shall be satisfied that the claim exhibited against the estate is just, he shall endorse thereon his approval of and allowance of same and the time it was exhibited. He is also required to keep a list of suck demands and class tke same and make return thereof to the probate court. Kirby’s Digest, § § 114, 121 and 122.

Our court, although it has said that an administrator should plead the statute of limitations in bar of a claim presented against the estate for allowance, it has nevertheless held that an administrator’s settlement, claiming credit for payment of such á claim which could have been defeated by a plea of the statute of limitation, after its confirmation, will not be set aside by a court of chancery for fraud on that account. Williams v. Risor, 104 S. W. (Ark.) 548; Dyer v. Jacoway, 50 Ark. 228; Conway v. Reyburn, 22 Ark. 290. The administrator, of course, pays such a claim at his peril, for, if he be not allowed credit therefor by the probate court upon his settlement, he necessarily stands charged with the amount so paid, and he and his sureties remain liable therefor to those interested in the distribution of the estate.

It is doubtless also true that he should plead the statute of nonclaim against the allowance of all claims not presented within the time required under its provision, since it is the policy of the law to close up the administration of estates without too long delay, still, such statute does not militate against the justness of the demand.

In the instant case, it is not claimed that the note paid by the administrator to the executor of Driver’s estate was not a just debt of the deceased, Keiser, nor that any part thereof had been paid; nor that the whole amount was not justly due; nor was any reason alleged for'the recovery of the amount so paid but the technical one, that the administrator could have defeated its payment by a plea of the statute of nonclaim, and having failed to do so, that the executors and legatees of the estate of Driver became liable for the repayment of the money so alleged wrongfully to have been paid. It can not be said that Driver’s executor received payment of a claim that was not a just one, and upon the principle that he who seeks equity must do equity, it would be inequitable and unjust to permit appellants to recover tbe money so paid to tbe executor of tbe Driver estate.

If tbe widow and beirs are entitled to recover "tbe money at all, they must look to tbe administrator, whose duty it was to protect tbe estate against unjust and illegal claims, and tbe sureties upon bis bond, for any moneys wrongfully paid out by him. And upon a proceeding against tbe administrator and bis sureties; they will necessarily be confronted with bis settlements, claiming credit for tbe money so paid, duly confirmed and approved by tbe probate court which thereby became binding upon all persons interested in tbe estate, and are judgments, and as such conclusive of all matters embraced in tbe settlements, and of all matters belonging to and within tbe scope of such proceedings. Beckett v. Whittington, 92 Ark. 235, 122 S. W. (Ark.) 534. Such judgments can not be.set aside for fraud even if this were a proper proceeding for that purpose, tbe allegations of tbe complaint being insufficient under tbe authority of tbe following cases. Floyd v. Newton, 97 Ark. 464; Bell v. Altheimer, 99 Ark. 537; McLeod v. Griffis, 51 Ark. 1; Mock v. Pleasants, 34 Ark. 72; Williams v. Risor, 104 S. W. (Ark.) 548; Dyer v. Jacoway, 50 Ark. 228; Conway v. Reyburn, 22 Ark. 290.

It follows that tbe decree is right, and it is affirmed.