Carrigan v. Rowell

• Decision Date: 06 February 1896
• Citation: 34 S.W. 4,96 Tenn. 185
• Parties: CARRIGAN v. ROWELL et al.
• Court: Tennessee Supreme Court

34 S.W. 4

96 Tenn. 185

CARRIGAN v. ROWELL et al.

Supreme Court of Tennessee.

February 6, 1896

Appeal from Lincoln county court; M. W. Woodard, Judge.

Creditor's bill by Jo. G. Carrigan against J. T. Rowell, administrator of the estate of John Maddox, deceased, and others, to subject certain land to the satisfaction of complainant's claim. From a judgment sustaining a demurrer to the bill complainant appeals. Reversed.

W. B Lamb, Jo. C. Higgins, and Jo. G. Carrigan, for appellant.

Holman & Carter, for appellees.

McALISTER J.

This is a creditors' bill, filed in the county court of Lincoln county against the widow and children as well as the personal representative of John Maddox, deceased, for the purpose of subjecting to the satisfaction of complainant's debts a certain tract of land, specifically described in the bill. There was a demurrer interposed in behalf of defendants, which was sustained by the court, and the bill dismissed. Complainant appealed, and has assigned errors.

The allegations of the bill necessary to be noticed are that the intestate, John Maddox, departed this life in Lincoln county Tenn., about the year 1881, seised of the tract of land mentioned in the bill; that during his lifetime this land was allotted him as a homestead, and upon his death his widow, Eliza Maddox, and his minor children, continued to occupy it as a homestead until the year 1892, when the said Eliza Maddox abandoned said homestead, and with her minor children removed to the state of Texas. It is charged in the bill that said Eliza Maddox, widow of said John Maddox, deceased, is now a citizen of Texas, and that her minor children are domiciled with her in said state. It is further alleged in the bill that the defendant J. T. Rowell was appointed and qualified administrator of the estate of John Maddox, deceased; that said administrator suggested the insolvency of said estate to the county court of Lincoln county, and such proceedings were had that on February 15, 1881, an order was made by said court for creditors to file their claims; that in pursuance of such notice many claims were filed against said estate, including the claim of complainant, amounting to $485, less a credit of $50. It is further alleged that a long contest then ensued with the administrator in respect to the validity of a large number of claims, including that of complainant. Finally, on the 20th March, 1890, complainant's claim and many others were allowed by decree of the county court, and ordered to be paid. It is then alleged that the administrator has made a pro rata payment of about 50 per cent. on said adjudicated claims, leaving about 50 per cent. unpaid; that in making said pro rata distribution the administrator has exhausted all the personalty of said estate. Complainant charges that the widow and minor children, having removed to Texas, are no longer entitled to said homestead exemption, and prays that the same be sold for the payment of balance due on the debts of said estate. There was a demurrer filed by the guardian ad litem on behalf of the minor defendants, in which three assignments are made, to wit: First, that the bill shows upon its face that more than seven years have elapsed since the death of the intestate, John Maddox, previous to the filing of the bill; second, that there can be no forfeiture or abandonment of the homestead as to the minor children; third, that the homestead sought to be sold was set apart to the intestate, John Maddox, in his lifetime; that upon his death the same passed to the widow for life, and that upon her death the same will descend to said minor children of John Maddox, free from his debts. The county judge was of opinion that the first and third causes of demurrer were not well made, and overruled the same. But the court adjudged the second ground sufficient, and dismissed the bill. Complainant appealed, and counsel have argued all the assignments of demurrer, which we will proceed to consider.

The first ground of demurrer is based upon section 3483, Mill. & V. Code, which provides, viz.: "But all actions against the personal representatives of a decedent for demands against such decedent shall be brought within seven years after his death, notwithstanding any disability existing otherwise they will be barred forever." The present bill was not filed until November, 1894, while the death of John Maddox, as therein alleged, occurred prior to 1881. As stated by this court in Henderson v. Tipton, 88 Tenn. 258, 14 S.W. 380, this statute embodied in sections 3119 and 3483, Mill. & V. Code, is one of positive prescription, and not only bars the remedy, but extinguishes the right; that it runs against everybody, including the state, and need not be pleaded, but may be relied on in evidence. It was held, however, in Woolridge v. Page, 1 Lea, 135, that where a creditor commences suit against the personal representative within two years and six...