Moebes v. Kay

• Decision Date: 29 May 1941
• Docket Number: 8 Div. 35.
• Parties: MOEBES et al. v. KAY.
• Court: Alabama Supreme Court

2 So.2d 754

241 Ala. 294

MOEBES et al. v. KAY.

8 Div. 35.

Supreme Court of Alabama

May 29, 1941

[Copyrighted Material Omitted]

E. W. Godbey, of Decatur, for appellants.

Harris & Harris, of Decatur, for appellee.

LIVINGSTON Justice.

Cynthia Kay, the appellee and a judgment creditor, filed her bill of complaint in the Circuit Court of Morgan County, Alabama, on her own behalf and on behalf of all other creditors, against Joe W. Lipscomb, Press N. Lipscomb, Mattie Moebes, Grace Edgemon, J. P. Lipscomb, individually and as administrator of the estate of D. F. Lipscomb, deceased, Lottie E. Walter individually and as administratrix of the estate of D. F Lipscomb, deceased, the National Surety Company, a corporation, James H. Collier, J. J. McCutcheon, W. E. Garrison, and J. W. Bowling.

The respondents the National Surety Corporation, James H. Collier, J. J. McCutcheon, W. E. Garrison and J. W. Bowling are alleged to be sureties on the official bonds of J. P. Lipscomb and Lottie E. Walter, as administrator and administratrix of the estate of D. F. Lipscomb, deceased. The other respondents are alleged to be the children and sole heirs at law of D. F. Lipscomb, deceased, and are over the age of twenty-one years.

The bill as last amended seeks the removal of the administration of the estate of D. F. Lipscomb, deceased, from the Probate Court of Morgan County, Alabama, to the circuit court, in equity, of said county, a discovery of the property of said Lipscomb, and an accounting for the same; a sale of certain specifically described real estate belonging to D. F. Lipscomb at the time of his death, and general relief.

The bill of complaint was filed in the Circuit Court of Morgan County, Alabama, in equity, on December 5, 1936. An order of removal was made and entered by the Hon. A. A. Griffith, Circuit Judge, on December 7, 1936.

To the bill of complaint as last amended, the respondents Joe W. Lipscomb, Mattie Moebes, Grace Edgemon and Press N. Lipscomb filed demurrers. The demurrers were overruled and the respondents Mattie Moebes, Grace Edgemon and Press N. Lipscomb appeal. It will be noted that the respondents who are testing the bill by demurrer, and who are appellants here, are the children and heirs at law of the said D. F. Lipscomb, deceased.

The decree from which this appeal is taken recites the filing and overruling of demurrers of the administrator and administratrix of the estate of D. F. Lipscomb, deceased, and the National Surety Corporation, surety on the official bonds of the administrator and administratrix, but no appeal was perfected by them. Their appearance, and written consent for a severance in the assignment of error, filed in the cause, and their failure to appeal, eliminates them so far as this appeal is concerned.

Without setting out in detail the allegations of the bill of complaint, and the numerous grounds of demurrer, this record presents the following questions for the consideration of this court: 1. The right of a judgment creditor of the estate of a deceased person to remove the administration of the estate from the probate court to the equity court? 2. When can an amendment of the affidavit supporting a claim filed in the probate court against the estate of a deceased person be made? 3. Under what conditions or circumstances may a judgment creditor sell the real estate of a deceased person who died intestate for the satisfaction of his judgment recovered against the personal representative in his representative capacity?

Addressing ourselves to the first question, we hold that irrespective of statute a judgment creditor may by bill of complaint remove the administration from the probate court into the equity court as a matter of right before jurisdiction has attached for final settlement and after, upon the averment of special equity. Irwin v. Irwin, 227 Ala. 140, 148 So. 846; Carter v. Hutchens, 221 Ala. 370, 129 So. 8, and cases cited. The right is not rested upon statute, but upon the general jurisdiction of the court of equity over the administration and settlement of estates of deceased persons. We find no error in the court's order of removal.

The bill of complaint filed in this cause shows that the claim of complainant against the estate of D. F. Lipscomb, deceased, as originally filed in the probate court, and later made the basis of the judgment against the personal representatives, was not supported by a sufficient affidavit as required by statute law. Demurrers to the original bill raising this point were sustained by the lower court. Amendment was then made of the affidavit in the probate court, and the bill of complaint amended accordingly.

Appellants contend that the amendment of the affidavit in the probate court and of the bill of complaint comes too late. To this we do not agree. This court in the case of Foster v. Foster, 219 Ala. 70, 121 So. 80, 82, speaking through Mr. Justice Gardner, said: "It is also insisted the verification of many of these claims was insufficient to meet the requirements of the statute. This may be conceded, but under the terms of the statute this defect of verification may be cured by 'amendment at any time' (section 5818, Code 1923 [Code 1940, Tit. 61, § 214]), and this deficiency may therefore be met upon remandment of the cause. Gillespie v. Campbell, 149 Ala. 193, 43 So. 28."

A statement of claim need not be as specific as formal pleadings, but should be sufficiently definite to inform the administrator of the nature and amount of liability it imposes, and to distinguish it with reasonable certainty from all similar claims. Watson v. Hamilton, 210 Ala. 577, 98 So. 784; Metcalf v. Payne, 214 Ala. 81, 106 So. 496.

The claim set forth in the bill of complaint in the instant case meets these requirements, and the amendment of same and of the bill of complaint in this respect, was without error.

As heretofore stated, the appellants are the heirs at law of D. F. Lipscomb, deceased. It will be observed that J. P. Lipscomb and Lottie E. Walter are not before this court as appellants in either their individual or representative capacity, and we are not here concerned with complainant's rights against them in either capacity.

One phase of the bill of complaint seeks to subject real estate belonging to said Lipscomb at the time of his death to the payment of complainant's claim against his estate. Responding to the demurrer to that phase of the bill which seeks to have lands of the decedent sold for the payment of debts, we will say, it is elementary and hardly needs the citation of authority that real estate of persons dying intestate in the state of Alabama descends to the heirs at law, subject to the payment of debts in the event the personal property is insufficient for that purpose. Under the common law, real estate left by a person dying intestate could never be sold for the payment of his debts, other than debts due by specialty binding the heirs. Scott v. Ware, 64 Ala. 174.

There being no authority under the common law for the sale of real estate for the payment of debts of a person dying intestate, except as stated above, we must look to the statute for that authority. Section 5848, Code of 1923, Code 1940, Tit. 61, § 244, provides, "In case of intestacy, lands may be sold by the administrator for the payment of debts, when the personal estate is insufficient therefor." (Italics supplied.) In the case of a will, this same authority is given to an executor, or administrator with the will annexed, by section 5847, Code of 1923, Code 1940, Tit. 61, § 243. The statute confers the right to sell lands for the payment of debts on the administrator or the executor, as the case may be.

Section 6053 of the Code of 1923, Code 1940, Tit. 61, § 130 provides: "When any judgment is rendered in the circuit court against any executor or administrator, as such, and an execution thereon has been returned 'no property' by the sheriff or other officer of the county in which such judgment was rendered, an execution may issue against the executor or administrator personally, to be levied on his goods and chattels, lands and tenements."

The history of section 6053, supra, and its meaning are shown in the case of Dangaix v. Lunsford, 112 Ala. 403, 20 So. 639. In construing it, in the case of Smith v Alabama Great Southern R. Co., 212 Ala. 166, 102 So. 118, 119, Mr. Justice Sayre said: "The proceeding under it is a substitute for an action against the executor or administrator as for a devastavit when execution de bonis intestati has been returned 'no property.' From the case just mentioned, from Banks v. Speers, 97 Ala. 560, 11 So. 841, and from the cases there cited, it appears to be the settled law of this state that a judgment or decree against a personal representative in his representative capacity, if permitted to stand, is conclusive on the personal representative of the amount due and owing by him as representative, and that he has in his hands sufficient assets for its payment. 'These presumptions he will not be heard to gainsay or deny.' The statute law affords to executors and administrators opportunity, deemed sufficient by the Legislature, to ascertain the condition of an estate in their hands so that, if the estate be insolvent, they may avoid personal liability by pleading insolvency. Thus section 2803 of the Code of 1907 provides that-'No suit must be commenced against an executor or administrator, as such, until six months, and no judgment rendered against him, as such, until twelve months after the grant of letters testamentary or of administration.' He may, at any time before judgment, plead specially that the estate has been declared insolvent. Code, § 2794. And during the progress of any suit he may show that the estate...