Foster v. Foster

• Decision Date: 21 March 1929
• Docket Number: 6 Div. 268.
• Citation: 121 So. 80,219 Ala. 70
• Parties: FOSTER ET AL. v. FOSTER.
• Court: Alabama Supreme Court

121 So. 80

219 Ala. 70

FOSTER ET AL. v. FOSTER.

6 Div. 268.

Supreme Court of Alabama

March 21, 1929

Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.

Petition in equity by J. B. Foster and others against Zula Foster, as administratrix of the estate of L. B. Foster, deceased, for final settlement of said estate. From the decree, petitioners appeal. Reversed and remanded.

Nash &amp Fendley, of Oneonta, and O. D. Street & Son, of Birmingham for appellants.

J. T Johnson, of Oneonta, for appellee.

GARDNER J.

L. B Foster died intestate, without issue, and owning real estate and personal property. His widow, Zula Foster, was duly appointed administratrix of the estate and upon her petition the administration thereof was removed from the probate into the equity court. The heirs were brothers and sisters of the deceased and they petitioned the court for final settlement of the estate. To this end a reference was ordered for statement of account by the administratrix. To the allowance of credit for payment of certain claims, the heirs filed exceptions to the report, which were overruled. One of the heirs J. B. Foster filed claims against the estate, which were disallowed, and his exceptions to the report were likewise overruled, and the report in all things confirmed.

We consider the disallowance of the claims of said Foster as presenting the question of prime importance on this appeal, and it will therefore be first treated. Upon the death of L. B. Foster his real estate descended to his brothers and sisters, subject, of course to the homestead and dower rights of the widow. The personal property, after the payment of debts and charges against the estate, passed to the widow. Section 7374, Code of 1923. During his life decedent had executed mortgages on certain tracts of land owned by him, among them a mortgage on one tract to one Cornelius, and upon another to one Hyatt. J. B. Foster petitioned the court to require the administratrix to pay these mortgage incumbrances upon the land out of the personal estate. His petition disclosed that the administratrix, although having funds of the estate in hand sufficient for the purpose, failed and refused to pay off said mortgage indebtedness, and that, in order to prevent a foreclosure thereof, petitioner paid the mortgages and took an assignment thereof from the mortgagees. Within 12 months thereafter his claims were duly verified and presented, but they were disallowed for the reason they were not so presented within 12 months from the grant of letters of administration. We are of the opinion there was error in the disallowance of these claims. Under the common law real estate was never subject to the payment of the debts of the decedent. This rule has been modified by our statute (sections 5821-5848, Code of 1923); but it is well understood that the lands do not become assets of the estate for the payment of the debts unless the personal property of the decedent is insufficient therefor. Baldwin v. Alexander, 145 Ala. 186, 40 So. 391; Boyte v. Perkins, 211 Ala. 130, 99 So. 652. The personal estate, therefore, is primarily subjected to the payment of the debts of the estate, and constitutes what is referred to in some of the cases as the "natural fund" for that purpose. The authorities, therefore, very generally hold that, in the absence of a statute to the contrary, the heirs have an equitable right to have the debts of the intestate, whether secured or unsecured, paid out of the personal estate, so far as adequate for that purpose, and could be used without prejudice to the rights of unsecured creditors. This right is rested upon the equitable doctrine of exoneration, and, if paid by him for the protection of the real estate, the heir is entitled to contribution which is merely a different method of exoneration. 4 Pomeroy, Eq. Jur. (4th Ed.) § 1432.

The mortgagee, if he so desires, may look alone to his security for the payment of his debt, and in such case there would be no necessity to present any claim against the estate. Duval's Heirs v. McLoskey, 1 Ala. 745.

It is under these circumstances, with his real estate thus imperiled, the authorities hold the heir has the equitable right to have the land exonerated by payment of the debts out of the funds primarily liable for their payment. 24 C.J. 334; Beard's Appeal, 78 Conn. 481, 62 A. 704; Schade v. Connor, 84 Neb. 51, 120 N.W. 1012; Sutherland v. Harrison, 86 Ill. 363; Smith v. Kibbe, 104 Kan. 159, 178 P. 427, 5 A. L. R. 483, and note; Marshall v. Middleton, 100 Or. 247, 191 P. 886, 196 P. 830, 19 A. L. R. 1421, and note. These authorities are also to the effect that the failure to file and present such claim by the mortgagees as provided by the statutes of nonclaim did not affect the equitable remedy of the heir for exoneration, and that such statute had no application to such proceeding.

In Smith v. Kibbe, supra, the court, in discussing this question, said: "It is generally held that claims purely equitable in their nature require no presentation or approval. *** The debt in question was still alive and enforceable by the owner, and, not having run as against him, it cannot be held to have run against this equitable proceeding to exonerate the land from the payment of the debts of the estate, until the personal property has been exhausted."

If the question has been previously presented to this court it has escaped our notice, and counsel have not directed our attention to such case.

We have held that an administrator may redeem lands of the decedent under mortgage and file a bill for that purpose ( Griffith v. Rudisill, 141 Ala. 200, 37 So. 83), and also redeem collateral pledged as security for debts of decedent (Pryor v. Davis, 109 Ala. 117, 19 So. 440; Patapsco Guano Co. v. Ballard, 107 Ala. 720, 19 So 777, 54 Am. St. Rep. 131); but these cases did not involve the...