Gant v. Gilmer

• Decision Date: 15 June 1944
• Docket Number: 242.,6 Div. 231
• Citation: 245 Ala. 686,18 So.2d 542
• Parties: GANT v. GILMER.
• Court: Alabama Supreme Court

18 So.2d 542

245 Ala. 686

GANT v. GILMER.

6 Div. 231, 242.

Supreme Court of Alabama

June 15, 1944

Rehearing Denied June 29, 1944.

Rosenthal & Rosenthal and Walter S. Smith, all of Birmingham, for appellant.

Barber & Barber, of Birmingham, for appellee.

BROWN Justice.

This appeal is by W. E. Gant, as administrator cum testamento annexo, from the decree of the Circuit Court of Jefferson County, sitting in equity, in the cause of the administration of the estate of W. C. McCarty, deceased, pending in said court, denying the administrator's contest of a claim of the appellee Mary Frances (Hays) Gilmer, filed in the Probate Court, and establishing and holding valid said claim as a claim against the estate.

Allegedly the claim is the "Balance of Ten Thousand Dollars ($10,000.00) plus interest due under and by virtue of that certain judgment in the Circuit Court of Jefferson County Alabama, in Case Number 31630, wherein Mary Frances Hays, a minor, who sues by her next friend and Father, J. H. Hays is plaintiff and W. C. McCarty is defendant, said judgment being rendered in said Court on November 6th, 1924, in the amount of Fifteen Thousand Dollars ($15,000.00) on which judgment the sum of Five Thousand Dollars ($5,000.00) being paid on or about May 9th, 1925." The decree was entered on the 13th day of January, 1944, and the appeal was taken on the 12th day of February, 1944, by the administrator cum testamento annexo.

The appellee submitted on her motion to dismiss the appeal on sundry grounds, among others, misjoinder of parties; that the trial was on the contest filed by W. C. McCarty, Jr., as administrator of the estate of W. C. McCarty, deceased, who has not appealed, and that Gant as administrator cum testamento annexo, who was appointed was not a party to the contest; that the only parties to the contest appealed from were W. C. McCarty, Jr., in his capacity as executor of the will of W. C. McCarty, deceased, and Mary Frances (Hays) McCarty (Gilmer) as contestee; that Gant in his representative capacity was not a party to the contest that the proceedings in the record are void on their face and will not support an appeal, and "For that the appeal by the alleged parties appellant is without warrant or authority of law," and others, too numerous to mention.

The record shows that W. C. McCarty, Jr., during his incumbency as the duly appointed executor of the will of W. C. McCarty, deceased, "controverted and contested the claim" by contest filed on the 13th day of October 1938, and thereafter resigned as such executor and appellant was appointed by the court in his stead, by consent of all the heirs. The record further shows that Blanch K. McCarty on May 25, 1943, filed a contest of the claim in the form of a motion to strike same, on grounds among others that said claim was "not due or to become due within the meaning of Title 61, Section 211 of the Code of 1940."

The record further shows that the appellant himself in his representative capacity filed a contest, controverting the claim as "plea in answer" thereto, asserting that the judgment was dormant, barred by the statute of limitations of ten years; laches on the part of the claimant, her next friend and guardian in the presentation of the claim, estopped in that the suit by the minor child by its next friend against its grandfather, W. C. McCarty, was a friendly suit to recover on an insurance policy covering him as insured, and that the judgment was entered with the understanding that the payment of the sum of the insurance would be in full satisfaction.

The proceeding to controvert the validity of a claim filed against an estate under administration is authorized to be instituted by the personal representative of the decedent, and determined by the court having jurisdiction of the administration of the estate, and from any decree rendered on such contest, "Either party may appeal within thirty days from the rendition of judgment on any such claim." Code 1940, Title 61, § 216 (see, also, amendment of the statute by Acts of 1939, page 806; 1943, page 308); Code Supplement, Pocket Part, pages 127, 128, § 216, Title 61; Tillery v. Commercial National Bank, 241 Ala. 653, 4 So.2d 125.

When W. C. McCarty as execu...