Opinion
8 Div. 971.
June 21, 1917
Appeal from Chancery Court, Morgan County; James E. Horton, Jr., Chancellor.
E. W. Godbey, of Decatur, for appellants. D.C. Almon and Tennis Tidwell, both of Albany, for appellee.
Appellee was duly appointed executor of the estate of John P. Parsons, deceased, by the probate court of Morgan county, Ala., and has since been in the active discharge of his duties as such executor. Subsequent to the probate of the will of said decedent in this state, one Myers was appointed by the county court of Livingston county, Ill. (the domicile of the decedent at the time of his death), administrator of said estate with the will annexed in the state of Illinois, where the deceased owed certain debts. Appellants, Reed and Eppler, duly presented their claims, as creditors of said estate, in the county of Livingston, Ill., and afterwards brought suit and obtained judgments upon their respective claims against the Illinois administrator.
Appellee, as executor of the estate in Alabama, filed the original bill in this cause, the essential features of which appear in the foregoing statement of the case. He (appellee) asked for the removal of the administration of the estate into the chancery court, alleging the necessity for a construction of the will, and direction in regard thereto, and, in addition to these matters, alleged the claims of these appellants, as creditors of said estate, and asked the direction of the court in the ascertainment of the creditors and the amount due each, and that it be decreed that the claims of these appellants were not proper charges against the estate being administered by him.
We are of the opinion that the executor, confronted with this situation, and entertaining these doubts in regard to his duties as to the administration of the affairs of said estate — particularly with reference to the binding force and effect of the claims of these appellants, evidenced by judgments obtained against the estate of decedent in the state of Illinois — may properly appeal to the court for direction concerning the same, in the administration of said estate, and that the original bill contains equity.
The cross-bills of these appellants seek to have the court declare that the judgments obtained in Illinois conclusively established the validity of their claims against the estate, and that they (appellants) be declared creditors of said estate, with the right to share in the Alabama assets of the estate pari passu with all the other unsecured creditors; that a judgment be rendered against the executor for the amount of said claims, as allowed by the county court of Livingston county, Ill. In Johnston v. McKinnon, 129 Ala. 223, 29 So. 696, it was held by this court that an action of debt will not lie against an administrator in one state on a judgment recovered against a different administrator of the same intestate appointed under the authority of another state; the court saying:
"The reason is 'that, where administrations are granted to different persons in different states, they are so far deemed independent of each other that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter in virtue of his own administration; for in contemplation of law there is no privity between him and the other administrator.' "
Reference is there made to the cases of Jefferson v. Beall, 117 Ala. 436, 23 So. 44, 67 Am. St. Rep. 177, and Braithwaite v. Harvey, 14 Mont. 208, 36 P. 38, 27 L.R.A. 101, and note, 43 Am. St. Rep. 625.
It is clear, therefore, that under the above-cited authority of Johnston v. McKinnon the judgment against the administrator of the estate in Illinois is not of binding force against the executor under appointment by the probate court in this state. The demurrer taking this point was therefore well sustained.
But it is insisted that, although the judgment may not be conclusive against the executor, yet, as the estate is one entire estate, the presentation of these claims in the state of Illinois, and judgment obtained thereon in said state, suffice to prevent the same from being barred by the statute of nonclaim; and this seems to be the question of prime importance on this appeal. Counsel for appellants has directed our attention to several authorities in support of his insistence: Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, L.R.A. 1915D, 754; Succession of Gaines, 46 La. Ann. 252, 14 So. 602, 49 Am. St. Rep. 324; In re Gable's Estate, 79 Iowa, 178, 44 N.W. 352, 9 L.R.A. 221; Wilson v. Hartford F. Ins. Co., 164 Fed. 817, 90 C.C.A. 593, 19 L.R.A. (N.S.) 553; Rader v. Stubblefield, 43 Wn. 334, 86 P. 560, 10 Ann. Cas. 20; In re Williams' Estate, 130 Iowa, 553, 107 N.W. 608; Hill v. Tucker, 13 How. 467, 14 L.Ed. 223.
We are of the opinion, however, that the question was decided adversely to the contention of appellants by this court in Jones v. Drewry, 72 Ala. 311. The facts of the case are fully set forth by the reporter, and the opinion treats very clearly and fully the very question here under review, concerning the statute of nonclaim, as including nonresident creditors. We will briefly review that authority: James W. Cook, the decedent, was a resident citizen of Virginia at the time of his death. He died in Virginia, possessed of a large estate, including two plantations in Alabama. His will was duly admitted to probate in each of these states, and by the terms thereof three persons were nominated as executors in Virginia, only one of whom qualified, and two other persons were nominated as executors in Alabama, one of whom subsequently resigned, leaving Samuel G. Jones as the sole acting executor in this state. The will provided that the plantations in each state be kept up by the executors, and that the executors in Alabama should make annual returns to those in Virginia of the proceeds accruing from the plantations in this state. James Drewry and others, citizens of Virginia, filed a bill in the chancery court of Montgomery county, Ala., against the widow and children of decedent, as his heirs at law and devisees under the will, and against said Jones, as executor, and sought to enforce satisfaction 'of the debts due to the complainants from said decedent out of certain lands situated in Montgomery and Lowndes counties, Ala., which belonged to the decedent at the time of his death, and which were in the possession of defendants, claiming under his will. The bill showed that the decedent at the time of his death owed a large number of debts in Virginia, which were still unpaid at the time of the filing of the bill, among them the debts of complainants; that the executor appealed to the courts of that state for a construction of the will, and the administration of said estate, making the devisees and certain creditors of the decedent, who had liens upon the estate, parties thereto; and in the process of the administration of said estate the court audited, adjudged, and allowed many debts to be due and paid out of the real and personal property of said estate, which judgments of the Virginia court are unreversed, and of full force and effect, the complainants' claims being among those so adjudged. It was further alleged that the property of said estate in Virginia was insufficient to pay said 'debts, and that said estate is insolvent, and, further, that there are no debts of said estate in Alabama unpaid, and that the assets of the estate in the hands of said Jones, other than lands, are of small amount, and that it is necessary to sell the said lands for the payment of debts of the said estate. The bill sought a sale of the lands in this state, so that all of the creditors of the estate might be paid a pro rata out of the funds, or, after paying all of the debts or liabilities in the state of Alabama, the surplus be transmitted to the executor of said estate in Virginia, to be administered according to law. The court, speaking through Chief Justice Brickell, held that the established rule of law in regard to creditors is that the administration of assets of deceased persons is governed exclusively by the law of the place where the executor or administrator acts, and from which he derives authority, and that the domicile of the intestate or testator, or that of the creditor, cannot authorize the introduction of another law, to defeat the law of the situs of the administration. The opinion directs attention to the fact that the original statute of nonclaim contained an exception in favor of "debts contracted out of this state," but that, subsequently, said exception was omitted, and the only persons excepted from the operation of the bar of the statute were heirs or legatees, claiming as such, or minors or persons of unsound mind. From the opinion we take the following excerpts, as being directly applicable to the case here under consideration:
"The words of the statute are clear, unambiguous, and comprehensive: 'All claims against the estate of a deceased person must be presented within eighteen months after the same have accrued, or within eighteen months after the grant of letters testamentary, or of administration; and if not presented within that time, are forever barred.' The construction of the statute has been in harmony with the undoubted significance of its words. Every claim, or demand, existing against the testator or intestate at the time of his death, or subsequently accruing — every legal liability of either character, to which the personal representative can be made to answer, in courts of law or of equity, or which can charge the assets in his hands subject to administration — is regarded as falling within the operation and bar of the statute. The Legislature having omitted the exception of 'debts contracted out of the state' from the bar of the statute, the courts are powerless again to introduce it. The omission is a clear signification of the legislative will that such debts shall fall within the operation of the statute. * * * There could have been but one purpose in the omission from the statute of 'debts contracted out of the state'; and that purpose is, that the general words of the statute embracing them should have full operation. * * * The validity or justness of the debts is not the question now involved. The question is whether the creditors have done an act which the statute of this state declares a condition precedent to their right to charge the assets subject to administration in the courts and under the laws of this state. The question was not involved, and could not have been litigated, in the suit in which the decree in Virginia was rendered. * * * This statute requires the creditor to do an act within a specified time, to preserve his claim as a charge or incumbrance upon the estate of a deceased person. If the act be not done, whatever of justice there may be in his claim, however full may be the knowledge of the personal representative, or of heirs, or of legatees, or next of kin, entitled to the secondary right of the estate, of the existence and justice of the claim, the bar of the statute can be avoided only by the presentment to the personal representative — the act which the statute requires. * * * Whether the statute operates a bar to the claim is the only question which was argued by counsel, and we confine our decision to it. In any view which we can take, we are constrained to the conclusion: It is a positive bar no court obeying the statute can disregard. The result is the decree of the chancellor must be reversed, and a decree here rendered dismissing the bill."
Section 2590 of the Code of 1907 limits the time of presentation of claims to 12 months, and, with this exception, in so far as the question here involved is concerned, is practically to the same effect as was the statute treated in Jones v. Drewry, supra. That case, therefore, is conclusive here to the effect that the claims of these appellants are barred by our statute of nonclaim, so far as the administration of the decedent's estate in this state is concerned, The case of Jones v. Drewry, supra, has not been questioned by any subsequent decisions, but is found cited in Patrick v. Petty, 83 Ala. 420, 3 So. 779, and McDowell v. Brantley, 80 Ala. 173. It was decided many years ago, and no change, so far as the question here involved is concerned, has been made by the law-making power. It therefore expresses the settled law of this jurisdiction.
We have carefully considered the authorities relied upon by counsel for appellants, but we do not find that they have dealt with a statute of nonclaim with the peculiar legislative history as exists in this state, as pointed out in Jones v. Drewry, supra. The case of Dow v. Lillie, supra, from the Supreme Court of North Dakota, was clearly rested upon the statute of that state, and therefore cannot be of material aid here. Many of the authorities relied upon by appellants relate to the power of the court to order, upon a final settlement of the estate, the residuum thereof in the hands of the administrator in one state to be paid over or transferred to the administrator of the estate of the domicile of the decedent. The transfer of such residuum is a matter, not of jurisdiction, but of judicial discretion, depending upon the particular circumstances of each case, as was recognized by this court in Cochran v. Martin, 47 Ala. 525, and Childress, Adm'r, v. Bennett, 10 Ala. 751, 44 Am. Dec. 503. See, also, section 2712, Code 1907.
We have not that question before us, as it is not disclosed that the estate here in question is in process of final settlement, or that there will be a residuum upon such settlement, nor were the cross-bills filed upon such theory. Upon final settlement of the estate here, if there is a residuum in the hands of the executor, the court may, and doubtless will, in its discretion, order the same transferred to the administrator in Illinois, rather than order a final distribution in this state. But that question is only incidentally here involved. In the case at bar, appellants by their cross-bills have, sought to have their judgments and claims paid out of the estate in the hands of the executor in this state, notwithstanding the fact that the judgments are not binding on him and the claims were not presented in accordance with our statutes. The demurrers taking these points were properly sustained and the decree of the court below will be accordingly affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.