Rutherford's Adm'rs v. Br. Bank at Mobile

DARGAN, J. The first question presented by the assignment of errors, is, was the claim filed in the office of the clerk of the orphans’ court, within the time prescribed by law? By the act of 1843, every person having a claim against an insolvent estate shall file the same in the office of the clerk, within six months after the estate is declared insolvent. On the 14th day of July, 1845, the estate of Rutherford was declared insolvent, and in November, 1845, the note was presented to the elerk by the attorney of the bank, who stated that he wished then to file it, as a claim against said estate. The clerk being then busy, said he could not then attend to it. The attorney inquired of him where the papers relating to the estate were, and being informed that they were in a desk, he left the note with the other claims filed against said .estate. In December, the attorney of the bank applied to withdraw the original note, and to leave a copy, as there was .a suit pending in Mobile against the other parties to the note ; a copy of the note was made out and left with the clerk, who then noted the claim as filed. The original note was withdrawn and sent to Mobile, and was returned to the office of the clerk of the orphans’ court in February, 1846. Even if it were necessary, that the original note or bond should be filed with the clerk, we should hold that this claim was filed within the time prescribed by the statute. It was presented to the clerk in November, for the purpose of having it filed, [100] and the clerk being engaged, it was left in his office amongst the papers of the estate : this was in November, and although the clerk did not enter it on his book as filed, this omission of the clerk cannot prejudice the claimant. See the case of Gaffney v. Williamson’s ex’rs, 12 Ala. 628. But we do not think that it is necessary that the note or bond itself should be filed in the office of the clerk; but a copy of it, or a substantial statement of the claim filed in the office of the clerk, we think a compliance with the statute. The statute of 1815, in reference to estates, requires that all claims shall be presented to the administrator, or executor, within eighteen months; yet it has never been held, that the note, or bond, or other evidence of the claim should be presented, but on the contrary a copy, or a substantial statement of the claim, showing its character and extent, has always been deemed sufficient. See the case of Hunly v. Shuford, 11 Ala. Rep. 203; 1 Porter, 374; and the case of the Executors of Hutchins v. The Branch Bank at Decatur, 12 Ala. Rep. 802. It is true, that by the same section of the act, the clerk is required to give receipts for claims thus filed, but we cannot infer from this, that it was the intention of the legislature, that unless the original note or bond was filed with the clerk, that the claim should be rejected. Suppose the claim could be established only by parol proof, or the bond or note was lost, it would be admitted, that a statement of the character and extent of the claim, would be all that could be required. And to construe this act, so as to require that the note or bond itself should be filed with the clerk, within the six months, would often lead to great inconvenience, as it might be required as evidence in another action against other parties to it. Under this view, we think the claim was properly filed, even if the original note had not been filed with the clerk, in November, 1845, as in December a copy of the note was made out, and left with the clerk, and he then noted the claim as filed against said estate. 2. The next question presented, is, whether the affidavit was made and filed within the proper time. The claim must be verified by the affidavit of the claimant. The administrator, or the creditors, can insist on the [101] claimant’s making affidavit to the justice of his claim, but it is not necessary that the affidavit shall be made at the time the claim is filed with the clerk. See Brown v. Easley, adm’r, 10 Ala. Rep. 564. But if the claim is objected to for the want of an affidavit, the claimant must make the affidavit, or the claim will be rejected. But as the affidavit need not be made within the six months, but may be made after-wards, according to the construction given to this act by this court, we can see no reason why the claim snould be rejected if the affidavit is made at the time of making the final settlement. The object of this portion of the act was, to give the administrator, or the creditors, the right to demand of the claimant his oath, or affidavit that his claim is just, and if this is done at the time of the final settlement, the object of the statute is complied with. See the Administrators of Rutherford v. Goldsby, supra. The next question presented by the plaintiffs in error, questions the propriety of the action of the orphans’ court in permitting the extracts of the letters, the one written by Bower to Perrine & Crocheron, and the one by Perrine & Crocheron to Bower, to be read to the jury, as evidence on the trial of the issue of non est factum. Perrine testified, that he had received, about the 28th May, 1842, a letter from Bower, the witness, containing a postcript to the effect following: “I have requested Col. Wm. Rutherford to send a letter to your care, directed to A. W. Coleman, and I must request you to send the letter to Centreport, so that he can get it as soon as possible after you receive it; perhaps you may have an opportunity of sending it to him direct to War-renton.” The extract of the letter from Perrine & Croche-ron to Bower, was in these words: “ The letter forwarded by Col. Rutherford for A. Coleman, was handed to him on yesterday.” Bower testified that these letters had reference to the note in controversy, yet the note bears date in December, 1842, and the letters bear date, the one written by Bower in May, the other, written by Perrine & Crocheron in June, 1842. We are not able to perceive upon what principle these letters, or the extracts of them, can be received as evidence. The witness, Bower, might look at them as written memo102 randa, by which his memory might be refreshed as to any particular fact. But they were not written by Rutherford, nor to Rutherford, but were written by the witnesses to each other. They form no part of the contract, nor are they any part of the res gestae. W-e think, therefore, the court erred in permitting these extracts of the letters to go to the jury as evidence. In the case "of Vastbinder v. Metcalf, 3 Ala. 100, the action was for use and occupation. The plaintiff introduced a lease, which was not signed by either of the parties, and proved by the person who wrote it, that it was the agreement under which the 1easing was mode. This court held, that though the witness might have looked at the writing to refresh his recollection as to the facts, yet the writing itself was not evidence. • These letters can amount to nothing more than mere declarations made by the witnesses to each other, and cannot be received as evidence of the contract, or of the execution of the note by the decedent. As this testimony was illegal, we must reverse the decree of the orphans’ court allowing the claim, although there may have been testimony sufficient to justify the jury in finding a verdict that the note was executed by the intestate, for we cannot ascertain what influence this testimony had upon the jury in coming to their conclusion. The last question raised by the plaintiff in error is, that the court erred in rejecting the plea, that the note had been paid to the bank by one of the co-sureties, since the claim was filed, and also in rejecting the proof tending to show this fact. The bank had the right to proceed to make the money out of the other sureties, notwithstanding their claim was filed in the orphans’ court, against the insolvent estate of another surety' — and if the money was paid by a co-surety, after the estate was declared insolvent, and after the claim was filed by the bank, we see no good reason why the bank may not be permitted to prosecute the claim for the benefit of the surety who has paid the debt. But the court should have received evidence to show, if [103] indeed the facts are so, that the debt had been paid by a co-surety, for if it had been so paid, after the claim was filed by the bank, then the amount of the claim would not be governed exclusively by the amount of the note, but would be reduced to the amount that the surety who had paid the debt would have the right to demand for contribution, and the court should allow this claim to the extent of the co-surety’s right of contribution, and not to the extent of the whole amount of the debt. Let the decree be reversed, and the cause remanded.