Pollard v. Scears' Adm'r.

28 Ala. 484

• Court: Supreme Court of Alabama
• Decided: January 15, 1856
• Status: Published

Opinion

STONE, J.

An administrator, who has personal assets, in value sufficient to pay the debts of his intestate, is not bound to plead the statute of limitations. — Knight v. Godbolt, 7 Ala. 304; Hall, Weeks & Co. v. Darrington, 9 Ala. 502; Ex parte Perryman and Wife, 25 Ala. 79. When a resort to the realty is • necessary, to raise a fund to pay the debts, a different rule, for an obvious reason, prevails. — Bond v. Smith, 2 Ala. 660. In this case, we are not informed that the real estate was called into requisition, and hence conclude that the debts were paid with the personalty, the primary-fund for that purpose.

•It was also objected, that the debts in question were barred by the statute of non-claim, and that their payment by the administrator was in his own wrong. We do not think this objection sustained -by the facts. Before the expiration of eighteen months after the administrator .qualified, the claims of the creditors, which he afterwards paid, were formally stated in writing, in the presence, and with the assistance of the administrator; the creditors both being present. To a question addressed by the administrator tp one of the creditors, asking if that item, referring to the account, was all he claimed, he replied, it was all they claimed.- The claim of each creditor grew out of one and the same transaction, and the presentation of one was the presentation of both demands. Surely, this was enough to inform the administrator of the nature and amount of the demand, and that the claimants looked to the administrator for payment. The presentation was sufficient. — Hallett & Walker v. Br. Bk. Mobile, 12 Ala. 193; Jones v. Lightfoot, 10 ib. 17; Jones v. Pharr, 3 ib. 283; Hunley v. Shuford, 11 ib. 203.

It was further objected to the allowance of said credits, that they were not just demands against the intestate. If it were allowable, in the form in which the question is raised, to consider of the sufficiency of the proof on this point, we would answer, that the bill of exceptions contains the distinct statement, as a fact, that the intestate had received the two stuns of-money which created the-liability; and that the said creditors were entitled each to one-third of each of said sums. But this question is not presented in such form as to authorize its revision here.

The judgment of the probate court is affirmed.