Clark v. Guard

STONE, J. — We can not agree with the administrator, that the final settlement of this estate in June, 1879, and the payment by him of the decrees therein rendered, are a bar to the later settlement, from which the present appeal is prosecuted. It was no part of Guard’s duty to supersede the decrees in favor of other creditors, rendered on the first settlement. That was a matter which did not concern him, and to which he was not a party. We have no statutory provision authorizing a supersedeas by one creditor, whose claim has been disallowed, of decrees rendered in favor of other creditors, whose claims have been allowed. Section 2578 of the Code of 1876 provides for such a case. When, on final or partial settlement of an insolvent estate, litigation is still pending, and remains undecided, over a contested claim against the estate, distribution [460] •or disbursement should not be made of the entire assets, until-the contention over such claim is finally settled. If the claim is disallowed in the court below, and an appeal is claimed, then the administrator should, on motion, be allowed to retain and ■reserve “in his own hands a ratable proportion of such moneys for such [claim or] claims as may be then contested and un■decided.” A decree of disbursement should never be so made, as to compel the administrator to pay out money, which he is liable, under pending litigation, to pay again, .and to another. When such questions arise, the settlement is not properly a final ■One. It should be so far made partial, that there will be left in the hands of the administrator a sufficient fund to meet the liability, rendered contingent by the continuing litigation. Yet, in such case, the .probate court is not put in fault, unless the administrator move therefor. It is contended for the administrator that Guard should not have had a decree against him, but should have been left to his •suits against other creditors, who have been paid more than their several shares as shown by the re-distribution. Section 2585 of the Code is relied on in support of this position. We •do not so understand that section. Section 2568 of the Code provides that any claim against an insolvent estate, to be al-’ lowed,'must be filed within nine months after such declaration, or after the same accrues. Some claims do not, from their very nature, accrue until more than nine months after the declaration of insolvency. Security debts paid after that time are •of this class. If such claims are presented after final settlement and distribution, there will have been left nothing in the hands of the administrator with which to pay them, and hence, no decree for payment can be rendered against him. Such •creditors can have no recourse, save that provided by section 2585. We need not, and do not decide whether Guard can resort to the remedy provided by section 2585. All we decide nowT is, that the administrator can not compel him to do so. 'This, for the reasons stated in the first paragraph of . this •opinion. The first final decree — that of 1879 — has heen reversed and annulled by this court, and it now stands for naught.— Guard v. Hale, 64 Ala. 479; Shelton v. Carpenter, 60 Ala. 201, 212. The creditor, Guard, filed exceptions to most of the claims, •excejat his own. Ilis exceptions -were, “1 — that the same is not a just claim against said estate; 2 — the said claim is barred by the statute of limitations of three years.” The judge of probate sustained the second of the exceptions, and disallowed several of the claims on that ground. In the state in which this record is presented, it was necessary for the administrator to make proof of the justness of the claims, which were in the [461] shape of accounts. Exparte affidavits were not sufficient, if objected to. But there is another, reason why the probate court erred in disallowing these claims. The three years limitation is a bar only to open accounts, and a plea of the statute-of limitations of three years is not good, unless it avers the claim is an open account. — Code of 1876, § 3229; 2 Brick. Dig. §§ 123 to 129. The exception fails to aver the claims-were open accounts, and it is therefore insufficient. This exception should have been disallowed. We may add that it-does not affirmatively appear that any of the claims were what the law terms open accounts, while some of them, if not all, bear evidence-of not being open accounts. Reasonable attorney’s fees, and costs, both in the court below and in this court, should be allowed the administrator. This-applies alike to the former and the present settlements. The charge for filing the petition for the allotment of dower should not have been allowed. That petition was allowed to fail, because it was not pressed. If it had been prosecuted with reasonable diligence, dower could have been allotted in- time to secure a lease of the premises for the next succeeding year. The failure to prosecute the petition left the service-without profit to the estate. — Mundin v. Bailey, 70 Ala. 63. For the same reason, the administrator should have been charged with two-thirds of the rent for 1874, as the failure to realize it was the result of the failure to have dower allotted. There does not appear any reason why the administrator should not be charged with one-third of the sum paid for hauling, ginning and packing the cotton. From any thing shown in the record, he could and should have retained' that sum out of the thii'd allotted to the laborers. We find nothing in this record to require or justify any greater charge of interest against the administrator, than was-adjudged by the probate court. The case is, in many respects,, peculiar. There must be a reversal on the assignments of error by each party. Let the costs of the transcript be divided between the-, two appellees. Reversed and remanded.