Steele v. Weaver's Executors

PHELAN, J. This estate was reported insolvent by tbe executors on tbe 1st November, 1841, and that gave tbe judge of tbe Orphans’ Court jurisdiction over it, as an insolvent estate, Clarke v. West, 5 Ala. 117. Tbe objection that only one of tbe executors signed tbe report, we do not consider fatal to its sufficiency. It was in tbe name of both, and verified by tbe oath of one. Tbe judge of tbe Orphans’ Court treated it as a sufficient report, by ordering a sale of tbe lands of tbe deceased. A new bond was required afterwards to be given, and was given by both of tbe executors, which, if necessary, we would hold to be an adoption by both of tbe act of one in reporting tbe estate insolvent. We therefore bold, that tbe court below properly decided to proceed with tbe matter, as of an insolvent estate, against tbe objection of tbe plaintiff in error. After tbe estate was reported insolvent, and a sale of tbe lands ordered on tbe 9th November, 1841, nothing more seems to have been done towards tbe settlement of tbe estate, until tbe 1st January, 1844, when a new bond was given, agreeably to notice; and on tbe 27th February, 1845, an order was made, for creditors to file tbeir claims on or before tbe 1st September, and for publication of the order for six months. In tbe case of Boggs’s Adm’r. v. Branch Bank at Mobile, (12 Ala. 494,) this court has decided, that when an estate was declared insolvent previous to tbe act of 1843, but [543] no progress was made in tbe settlement until afterwards, tbe subsequent action of tbe court should be regulated by that act. We consider this case in tbe court below to be in that condition, and tbe rule laid down in tbe case last above cited must govern. No progress was made in tbe settlement of tbe estate, at tbe passage of tbe act of 1843 “to amend tbe laws now in force in relation to insolvent estates,” (Clay’s Digest, 192, et seq.,) although it bad been previously reported insolvent; and tbe subsequent action of tbe Court of Probate must be regulated by that act. See also Martin v. Baldwin, 7 Ala. 923; McLaughlin, v. Nelms, 9 ib. 925; Branch Bank v. Steele, 10 ib. 915. It follows that tbe Court of Probate erred, in deciding to proceed with tbe settlement of tbe insolvent estate under tbe old law, against tbe objection of tbe plaintiff in error. For this error, tbe decision of tbe court below on this point is reversed, and tbe cause remanded. The proceedings of tbe Court of Probate, in making tbe order, and giving notice to creditors to file their claims, as against an insolvent estate, agreeably to tbe law as it stood previously to 1843, was proper. This should have been done within a reasonable time, if not immediately after tbe estate was reported insolvent in 1841; and inasmuch as we are of 'opinion, under tbe authority of cases already decided by this court, (see 5 Ala. 117; 7 ib. 923; 10 ib. 915,) that no decree of insolvency was necessary, under tbe old law, to bring tbe estate fully within its provisions as an insolvent estate, it would not be consistent to determine that creditors should be held to the duty of filing their claims agreeably to tbe act of 1843; that is, within six months from the report of insolvency, regarding that as standing in tbe place of a decree of insolvency. They would, in such case, only be bound to file their claims within tbe time prescribed by tbe court under tbe previous law, not less than six, nor more than eighteen months, and tbe right to file claims would also be limited to tbe time so prescribed. Tl;e notice having been given for creditors to file their claims under tbe old law, and tbe claims having been filed accordingly, tbe act of 1843 takes tbe case up at that point, and all further proceedings must be bad under it, Steele v. Knox, 10 Ala. 608. Tbe first thing now to be done is, for [544] the Judge of Probate to appoint a day for tbe executors to make settlement of their accounts, and for notice to be given to creditors to attend on that day, at which time the court will proceed to settle with the executors, and the creditors will proceed to make choice of an administrator de bonis non; and the whole proceedings thenceforward will be governed by the act of 1843. The law previous to 1843 made no provision for contesting claims between the creditors of an insolvent estate, and the act of 1843 says, that all objections to claims intended to be contested, shall be filed in writing in the clerk’s office, within nine months from the time when the estate is declared insolvent under that act. There is evidently, then, no provision by statute regulating the time within which such objections shall be filed, where the estate is reported insolvent under the old law, and is to be settled through an administrator de bonis non under the act of 1843, as in this instance. In such case, the common law rule would be, that the written objections should be filed within a reasonable time after the appointment of an administrator de bonis non.