Hullett v. Hood

HARALSON, J. The abstract shows that W. T. Hood' died intestate on the 3rd day of August, 1893 ; that James W. Hood, a son of deceased, was appointed his administrator on the 21st of August, 1893, and that the assets and liabilities of the estate were such that it was known, within three months after intestate’s death, that the estate was hopelessly insolvent. The administrator reported the estate insolvent, on the 27th of-March, 1895, and on the 6th of May of that year the estate was decreed to be insolvent by the Probate Court. ' It is farther showii, thar the claims of - $19.40, constituting voucher No. 3, were presented and filed against the estate on the 19th of September, 1893, and, on the same [350] day, were paid in full by the administrator 'out of the funds belonging to the estate. In his life-time, the intestate recovered two judgments in the Circuit Court of Blount county, against different parties, and executions having been issued on the judgments against the defendants, were returned “no property found.” Thereupon, the clerk issued executions against the intestate, —the plaintiff in said judgments, — for the costs created by him in obtaining the judgments, as is provided maybe done in section 2891 of the Code. These executions for costs came to the hands of the sheriff of Blount county in the life-time of intestate, and were in his hands, wholly unsatisfied and alive, at the time of his death; and the principal part of the property of intestate was in the county of Blount and unincumbered. The administator paid and satisfied these two executions in full, amounting to $19.40. The Probate Court allowed the administrator a credit in full on settlement for this sum, and in this it committed no error. These executions might have been levied, and the money made on them, after the death of the intestate. — Code, § 2897. Section 2894 creates a lien on the lands and personal property of a decedent subject to levy and sale in the county in which they were issued, from the time a writ of execution is received by the officer authorized to execute it, continuing as long as it is issued and delivered to such officer, without the lapse of an entire term. The word, “defendant,” as employed in said section, includes the plaintiff in the judgment, when execution is issued against him under the statute, for the costs of the suit created by him. Section 2223 of the Code provides,that “whenever the executor or administrator of an estate is satisfied that the property of the estate is insufficient to pay its debts, he must file with the judge of the Probate Court having jurisdiction of the estate, a report in writing, that such estate is, to the best of his knowledge and belief, insolvent.” He is not bound to wait a day, after his appointment, to make this report, if he is satisfied that the estate is insolvent. In paying debts, not of a preferred class, be fore the expiration of 18 months from the grant of letters of administration, when he may the more surely know its condition, an administrator acts at his peril. If the estate afterwards proves to be insolvent, he cannot charge it [351] with the amount so paid by him, though he may be substituted for the creditors so paid, and receive the distributive share of the assets to which they would have been entitled. — McNeil v. McNeil, 36 Ala. 109; Bates v. Vary, 40 Ala. 437; Byrd v. Jones, 84 Ala. 341. The effect of a decree of insolvency is to draw within the jurisdiction of the Court of Probate all claims against the estate, whether reduced to judgment or not; and any claim not filed within nine months thereafter, as required by the statute, though, before the decree of insolvency, it may have been reduced to judgment against the personal representative, is forever barred. — 3 Brick. Dig. § 329. The claim for $331,95 as evidenced by voucher 41, should also have been rejectéd. The intestate was the co-administrator, with J. E. Bynum, of the estate of Isaac Bynum, deceased. The appellant, as administrator of intestate, filed his account and vouchers in the Probate Court, for a settlement of his intestate, on the estate of said Isaac Bynum, and a decree was rendered against him, as such administrator, on said settlement, on the 7th January, 1894, for $434.38, without any suggestion from him of the insolvency of said estate,or other objection, so far as appears. On this judgment, on the 18th of April, 1894, before the declaration of insolvency, he paid the sum of $216,75, and.on the 24th May, 1895, after the estate was declared insolvent, he paid $115,20, the two payments, together, making the sum of $331,95, as represented by voucher 41. The claim should have been disallowed. He paid it at his own risk, and the most he can claim is to be subrogated to the rights of the creditor, whose claim he has paid, and receive his pro rata dividends out of the assets, to which the creditor would have been entitled, if his claim had been properly verified and filed as required by law. Byrd v. Jones, supra; Bates v. Vary, supra. "Voucher No. 24, for $30,68, was sought to be established by the evidence of Westbrooks himself, the claimant, and by that of the administrator, who had paid,and was interested to maintain, the claim. Both witnesses were, therefore, directly interested in establishing the claim against the estate; and their evidence relating to a transaction with the deceased, — W. T. Hood, — whose estate was being settled, and interested in the result of the proceeding, fell directly within the inhibition of the [352] statute. Code, § 2765, as amended, Acts, 1890-91, p. 557. Westbrooks claimed that intestate owed him $210, and the evidence tended to show that he owed the estate $178,32. If Westbrooks’ claim of $210 was correct, this left $30,68 balance due him, which the administrator paid. 'In the abstract it is stated, “On the statement of Westbrooks alone, the administrator, on this settlement, balanced the store account against Westbrooks,” leaving $30,68 the amount of the voucher. The claim should have been disallowed, — Dunlap v. Mobley, 71 Ala. 102; Adler v. Pin, 80 Ala. 351. The evidence of the other witnesses went no further, as stated by them, than that Westbrooks “was seen in and about the store of W. T. Hood, and seen'at work in the store for sometime prior and up to the death of W. T. Hood, and that his services were reasonably worth the sum of $25 a month.’ ’ This evidence was too indefinite to establish,any thing. The evidence does not support the claim of J. W. Hood for $122,81 as due him as an enxploye of his intestate, during the year of his death, as represented by voucher 27. Whatever sum was due him by intestate, for services rendered as an employe during 1893, was a preferred claim, entitled to be paid in full, under section 2079, of the Code. His claim as made out, sworn to and filed against the insolvent estate, was for “Balance due on clerkship, 1892, 1893, due Sept,. 15, 1893, $122,81.” How much was for the one and the other year, is not shown, and only that part accruing in 1893 is preferred under the statute. There was evidence tending to show that he worked seven months in 1893, and that his services were worth $30, a month ; but his claim as presented shows that the whole of that amount was not due in 1893. It is shown further, without dispute, that the claimant owed a store account to W. T. Hood, at the time of his death, amounting to $186,35. He balanced this off, by crediting himself in these words, — “By work $186,35,” making the amount lie claimed, — $122,81,— (if the whole of the latter item were a proper charge,) the sum of $309,16 which was paid him for hire as clerk; when if he worked seven months in 1893, at $30, a month, the most he could claim as preferred Was $210. The evidence was too vague and uncertain as to the amount, if any; that was-really due him for wages in 1893, to justify its allowance. Besides, he was owing a [353] store account in 1893, which claimant himself makes appear ought to be treated as a payment on wages, if anything was due him on that score. Claims as represented by vouchers- 36 and 56, the one for $2,60, and the other for $5,00 should have been disallowed. They were not for costs incurred on this settlement, and >vere not preferred claims'under the statute. Code, § 2079. Reversed and remanded.