McDowell v. Jones

58 Ala. 25

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

BBIOKELL, C. J.

The demand preferred by the bill against the intestate of the appellant, is founded exclusively on his suretyship on the bond of the administrators with the will annexed of Charles Satterwhite, deceased. Independent of that bond, and the breaches of its condition, by the de-vastavit imputed to the principals, there is no equity averred to charge the intestate of the appellant. The claim is then matter of contract strictly, and the liability of the intestate to answer to it, is absolute, not contingent.. — Pratt v. Northam, 5 Mason, 95. There is no claim arising from a breach of contract, not within the operation of the statute of non-claim. There may be contracts, involving only contingent liability, or dependent upon the future performance, or the happening of some particular event, of some act or duty, by the person to whom the promise is made, or by some other person, not falling within the operation of the statute. Or, there may be claims not within its operation, because they do not accrue, until the doing of some act by another, after the grant of administration. When the act is done, and the claim has accrued, the bar of the statute is computed, not from the grant of administration, but from the doing of the act, and the accrual of the claim. The familiar illustration, is, the payment by a surety of the debt of the principal. The claim of the surety for reimbursement arises only on making payment, and from that time his claim falls under the bar of the statute. — Neil v. Cunningham, 2 Port. 171; McBroom v. Governor, 6 Port. 32; Winter & Gayle v. Br. Bank Mobile, 23 Ala. 762. Of the former class, contingent claims, is the liability of an endorser of a negotiable promissory note. The contract of indorsement, in its nature and terms, is conditional and contingent, imposing no liability, and no right to demand from the indorser, until the indorsee at maturity makes demand of the maker, and he fails to pay, of which due notice shall be given the indorser.- — Cockrell v. Hobson, 16 Ala. 349. Or, as in the case of Pinkston v. Huie, 9 Ala. 252, which was strictly a contingent demand, dependent on future events that might never happen. The liability of a surety on an administration bond, is contingent, until the principal shall fail in the performance of a duty required of him by law. But whenever there is a failure, it is absolute, and he is bound to answer to those having the ultimate interests in the assets, for whatever injury they may sustain from the breach of the condition of the bond. The modes of enforcing the liability may vary, as the remedy pursued may be in law or in equity. This does not change the character of the liability; that is fixed by, and is determined from the nature and terms of the bond, and not by the remedies which may be pursued for its enforcement. In Jones v. Lightfoot, 10 Ala. 17, it was held that a monied demand, dependent for its existence on the reformation by a court of equity, of a written contract, was within the operation of the statute; that it could not be be regarded as accruing only on the rendition of the decree correcting the mistake, though such decree was necessary to give a right of action for the demand. The court say: “A contingency, excepted from the operation of the statute, cannot depend upon the action of the court in granting or refusing relief. .If the party is not entitled to a judgment, or decree, at the hands of the court, he has no claim against the estate, and there is an end of the controversy. If he is, it cannot be considered as contingent, whether it will be granted or refused. In this case, upon establishing the fact of mistake in the deed, and the injury consequent tbereon, tbe redress was as certain as upon an instrument in writing for the payment of money. Whether a claim exists or not, does not depend upon the proof by which it is established, or the forms in which relief must be sought, and indeed, the argument, if allowed, would go the entire length of repealing the statute.”

The devastavit the bill imputes to the principal was committed in the life of the surety. The right of action of the legatees, whose representative for the purposes of this suit, the appellee is, was complete before the death of the surety. The Court of Probate, on their application, could have compelled a final settlement of the administration, and the distribution of the assets. Or, a court of equity would have entertained a bill for a settlement of the administration and distribution, against the administrators and their sureties, rendering decrees against them jointly, for the defaults of the principals. — Moore v. Armstrong, 9 Port. 697. If the remedy had been pursued in the Court of Probate, during the life of the surety, the decrees rendered against the principals would have been conclusive on him, and the foundation for immediate suits at law on the bond, against principals and sureties. Or, executions could have issued against the principals, out of the Court of Probate, and on a return of no property found, then execution could have issued against principals and surety. The liability of the surety accrued as a claim, by the devastavit. It was not dependent on a future contingency, or on a condition, or event which might never happen. It was not the subject of a suit at law, nor was there any right of action at law against the surety, until the devastavit had been established by a judgment or decree against the administrators. A claim may fall within the operation of the statute of non-claim, though the right of action thereon has not accrued. It is enough, that the claim, the right to demand in the future, certainly exists.-— King & Barnes v. Mosely, 5 Ala. 610; Jones v. Lightfoot, supra. Otherwise, bonds, promissory notes, or other contracts for the payment of money at a future day, would be excluded from the operation of the statute, until their maturity. If there was any uncertainty, it was the uncertainty of establishing the devastavit, so as to bind the surety. Such uncertainty is not the contingency which relieves a claim from the operation of the statute. In Fretwell v. McLemore, 52 Ala. 124, after patient and deliberate consideration, we held, the claim against the estate of a deceased surety of an administrator, to recover for the devastavit of the administrator, committed in the life of the surety, was within the operation of the statute of non-claim. This decision has been followed since, in Owen’s Adm’r v. Corbitt, Adm’r, and Foster v. Holland’s Adm’r, MSS. These decisions are therefore conclusive, that the demand preferred by the bill-falls within the operation of the statute; and they are sustained by the decision of Judge Story, in Pratt v. A?'ortham, supra, construing a similar statute of Nhode Island; and by the decision of the Supreme Court of Tennessee, on a similar statute, in Hooper v. Bryant, 3 Yerg. 1.

It would not be doubted, that if judgment or decree had been obtained against the administrators, so that the right of action at law on the bond, against them and the sureties would be complete, the claim against the surety would fall within the operation of the statute. Yet such judgment or decree would not enlarge, or in anywise affect the liability of principal or surety. That liability accrued from the unfaithful administration, the breach of the condition of the bond. The judgment or decree simply establishes the right of the plaintiff to sue at law on the bond; no other than parties who have reduced their demands to judgment or decree having the right to such suit. But as is said in Thompson v. Searcy, 6 Port. 393, it is not the foundation of the action, and is recited in the declaration, or complaint, only as fact, the existence of which is indispensable to the plaintiff’s right of recovery.

The bill proceeds on the supposition, that the claim is within the statute, and consequently avers a presentment was made within eighteen months after the grant of letters testamentary, by the presentment of a copy of the administration bond to the appellant. Such presentment is averred to have been made by De Forest Nichards, as administrator de bonis non, with the will annexed of the testator, through the appellee as his attorney. The presentment is substantially admitted by the answer, though it is denied that Nichards was the administrator de bonis non of the testator, or that he had any interest in the estate, legal or equitable, or any right or authority to make the presentment, so as to intercept the operation of the statute of non-claim. It cannot be doubted that the appellant, by this presentment, was fully informed of the existence of the claim; but the uniform construction of the statute has been, that knowledge of the existence of the claim on the part of the personal representative, no matter how full and complete, will not avoid the bar of the statute, and dispense with the presentment it requires, either in equity or at law. — Jones v. Lightfoot, supra; Bogg’s Adm’r v. Br. Bank Mobile, 10 Ala. 970; Pipkin v. Hewlett, 17 Ala. 291. Such knowledge may, in all cases, be imparted by, or acquired from, mere strangers, who are without authority over, or right in, or connection with the claim. To avoid the operation of the statute, it is required there shall be an act done by the creditor or claimant —a presentment of the claim; and it is this act only, which satisfies the words or purposes of the statute. — Br. Bank Decatur v. Hawkins, 12 Ala. 755. The presentment must not only furnish the personal representative, knowledge of the existence of the claim, but also knowledge that those having the right and interest, rely on, and intend to enforce it. The knowledge of the existence of the claim may be derived from a stranger, but the further fact of the intent of those in interest to rely on and enforce it, can be derived from them alone, or from their agents. — Jones v. Lightfoot, supra. It is the knowledge of this last fact, derived from the presentment, the statute authorizes and requires, that furnishes the personal representative with just and legal grounds for resisting applications made for the payment of legacies, or for distribution, after the expiration of eighteen months from the grant of administration; or, if legacies may be paid, or partial distribution may be made, of the necessity of deferring final settlement, and the amount of assets he should retain to await the establishment of such claim. It is a necessity, therefore, the presentment should be made by a party having an interest in the claim, and a right, legal or equitable, to its enforcement. — Hallett & Walker v. Br. Bank Mobile, 12 Ala. 193; Cook v. Davis, ib. 551.

The only connection Richards had with the claim was in the capacity of administrator de bonis non, under the appointment made by the Court of Probate, on the 2d Monday in August, 1870. If that appointment was valid the presentment of the claim could have been made by him, as it could also have been made by any of the legatees entitled to distribution. We are, however, constrained to declare that appointment void — a mere nullity; and that the presentment made by Richards was the act of a stranger, which may have given to the appellant notice of the existence of the claim, but did not, and could not, inform him of the further indispensable element of a presentment, that the estate of the intestate was looked to for payment.

It is not now matter of controversy in this court that there cannot, within the same jurisdiction, be two valid grants of administration on the same estate, existing at the same time — one or the other must be void. — Matthews v. Douthitt, 29 Ala. 373; Coltart v. Allen, 40 Ala. 155; Nelson v. Boynton, 54 Ala. The case as it is presented by the pleadings, and the transcript, from the Court of Probate, exhibited with the bill, does not leave the validity of the order removing McGuire from the administration in chief an open question. The bill alleges its invalidity, and further discloses that when its validity was directly presented .to this court,. on an appeal from a decree rendered against McGuire as a removed administrator, in favor of Richards as administrator de bonis non, it was declared void, That order being void, the grant of administration de bonis non to Richards was of necessity void. The administration in chief not being vacant, there was no room for an administration de bonis non.

The presentment subsequent to that made by Richards, was after the expiration of eighteen months from the grant of administration, and cannot revive the claim the statute has barred. Nor do we think it material that the appellant, because of his knowledge of the existence of the claim, reported the estate of his intestate insolvent.’ -A personal representative may report an estate insolvent whenever he is satisfied the assets are insufficient for the payment of debts. When he makes such report, he files a full statement, not of the claims which may have been presented to him, but of such as have come to Ms knowledge. — TO. 0. §§ 2178-9. If such claims are not presented within eighteen months after'the Srant of administration, it is a valid objection to their allowance as claims, entitled to share in the distribution of the assets. Though if filed within nine months after the decree of insolvency, in the Court of Probate, and before the expiration of eighteen months, such filing would operate as a presentment. — Lattimore v. Williams, 8 Ala. 428. The report of insolvency does not indicate more than that the appellant had knowledge of the existence of the claim — it does not indicate there had been a presentment of it. In Jones v. Lightfoot, supra, the testator had set apart a sum of money for the payment of the claim, and the executors had deferred the settlement of the estate, awaiting the issue of a suit involving it, and had employed counsel to defend the suit. These were facts indicating only the knowledge of the executors, that the claim existed. Yielding to the words and spirit, and purposes of the statute, we are constrained to declare the chancellor erred in overruling the appellant’s plea of the statute of non-claim. As the case is now presented, it is a positive bar to the relief sought against Mm.

The appeal has been taken and prosecuted by the appellant alone, without joining his co-defendants in the Court of Chancery, and he alone has assigned errors in this court. The appellees, without objection to the mode of taking and prosecuting the appeal, have joined in the assignment of errors. The conclusion we have reached renders it necessary that tbe decree as against tbe appellant, should be reversed, and tbe bill as to him dismissed. In no other respect and as to no other party, is it disturbed.

. Note by Reporter.- — After the delivery of the opinion, the appellee petitioned for a rehearing, and in event that was denied, for a modification of the decree dismissing the bill as to appellant, so as to make it one of reversal merely, and to remand the cause, that appellee might make certain amendments, which would show that Richards acted not merely as administrator, but also as agent of some of the heirs and legatees of Satterwhite. Accompanying the petition were three affidavits tending to establish these facts. The appellant filed counter affidavits, denying these facts. The following response was made thereto :

Per Ouriam:

The application for a modification of the judgment rendered in this cause on a former day of the term, so that the cause may be remanded, and the opportunity afforded for an amendment of the pleadings, and the introduction of further evidence, must be overruled^on the 'authority of Johnson v. Glasscock, 2 Ala. 249; Maury v. Mason, 8 Port. 211; Rumhley v. Stanton, 24 Ala. 712.