McGehee v. Lomax

PECK, C. J. — The decree of insolvency had the effect to transfer all claims against the decedent’s estate, whether the creditors were creditors at large or judgment creditors, to the Probate Court for settlement. Ray v. Thompson, 43 Ala. 434. In that court, if said claims were filed and verified as by law required (Rev. Code, § 2196), and not objected to, on a settlement and distribution of the assets of said estate they should be paid in full, or pro rata, as the assets might prove sufficient or insufficient for that purpose; and all claims, not so filed and verified, are declared by the same section to be “ barred forever.” Therefore the execution issued on the appellant’s judgment after said estate had been declared insolvent, if not wholly void, was clearly irregular and insufficient on a return of “No property found,” to authorize the issue of an execution against the appellee, personally (Rev. Code, § 2282), to be levied off her individual goods and chattels, lands and tenements. This was a sufficient ground to justify the quashing of said execution. The appellant seeks to avoid this, by saying that his judgment against the appellee was evidence of assets, and imposed on her a personal liability, the estate not having been declared insolvent until after said judgment was rendered. This is answered by the 3d section of the act approved February 16,1867 (found in the Revised Code as part of section 2151), which provides that executors and administrators shall be allowed twelve months from the date of said act to report estates insolvent, “ where they may have become so from any cause, if the time allowed to declare estates insolvent has, or is about to expire ; and that no executor or administrator shall be liable for any failure to return such estates insolvent since the 11th day of January, 1861.” Besides, the appellant was a creditor of the estate, and therefore a party to the proceeding to declare the estate insolvent; and whether he failed to appear, or appeared and made no objection, in either case he was bound by [134] the decree declaring said estate insolvent. The statute declares, that if no creditor contests the "correctness of the report of insolvency, or if he contests and the issue is found against him, the court must declare the estate insolvent, &c. Rev. Code, § 2187 ; Waller v. Ray et al., at June Term, 1872. It is insisted, also, that the appellee received her letters testamentary from a probate judge during the late Rebellion; and for that reason that the Probate Court acquired no jurisdiction, on her petition, to declare said estate insolvent. In the case of Bibb & Falkner v. Avery (45 Ala. 691), it was decided that such letters are not void; that executors in such cases, so far as they have acted in good faith in their administration, and in conformity to the will, should be protected; that such executors were authorized to take possession of the personal property of their testator, to collect the debts of the estate when voluntarily paid, or even by suit if no objection was made, and that they might pay the just debts of the testator, and the legacies, if any were bequeathed by the will. And we now hold that such executor may also, before administration is granted to some other person, report the estate insolvent; and that such report, where no objection is interposed by the creditors, gives the Probate Court jurisdiction to declare the estate insolvent. This is not inconsistent with the said case of Bibb & Falkner v. Avery (supra), and is in harmony with the principles settled in the case of Erwin v. Hill, decided at the present term. Moreover, as the appellant treated the appellee as executrix, — sued her as such, and recovered his said judgment, and issued execution against her as executrix, —it does not now lie in his mouth to say that she was not executrix. For these reasons, -the court below committed no error in overruling the demurrer to the petition, and in quashing said execution. The judgment is affirmed, at the appellant’s costs.