Glass v. Woolf's Adm'r

• Decision Date: 13 July 1887
• Citation: 82 Ala. 281,3 So. 11
• Court: Alabama Supreme Court
• Parties: GLASS v. WOOLF'S ADM'R.

3 So. 11

82 Ala. 281

GLASS v. WOOLF'S ADM'R.

Supreme Court of Alabama

July 13, 1887

Appeal from circuit court, Marengo county; WM. E. CLARKE, Judge.

This action was brought by W. B. Glass, as the administrator of the estate of his brother, Samuel T. Glass, deceased, against S. G. Woolf, as the administrator of the estate of H. A Woolf, deceased, who was one of the sureties on the official bond of Williamson Glass as guardian of said Samuel T. and W B. Glass, and was commenced on the third of February, 1886. The guardian's bond was dated the twenty-sixth of September, 1871, and was conditioned in the terms of the statute. The plaintiff's intestate died in Texas in October, 1880, being then about 16 years of age; and there was no administration on his estate until plaintiff was appointed, on the seventh of March, 1885. The guardian made an attempted settlement of his accounts on the fourteenth of January, 1878, but it was held void by this court on appeal under a bill filed to set aside the decree and an entry of satisfaction. Glass v. Glass, 76 Ala. 368. Another final settlement was made on the thirteenth of July, 1885, and that decree was filed on the sixteenth of September, 1885, as a claim against the estate of said H. A Woolf, defendant's intestate, who had died on the twenty-third of October, 1879, and on whose estate letters of administration were granted to the defendant on the twenty-fifth of February, 1880. The defendant pleaded the statute of non-claim, and that was the only defense. On these facts, the court instructed the jury to find for the defendant, if they believed the evidence. The plaintiff excepted to this charge, and he here assigns it as error.

Geo. W. Taylor, for appellant.

Tayloe & Johnson, contra.

SOMERVILLE J.

The circuit court decided that the claim of the ward against the estate of the deceased surety on his guardian's bond was barred by the statute of non-claim, and the question presented in this court is the correctness of this conclusion.

The statute of limitations does not ordinarily commence to run, in such a case, until the judicial ascertainment of the guardian's liability; that is, until the rendition, by a court of competent jurisdiction, of a judgment or decree against the principal. Martin v. Tally, 72 Ala. 23. The non-payment by the principal of the amount thus adjudged to be due would constitute a breach of the bond. Not so, however, with the statute of non-claim, which has in view the subserving of a distinct policy,-the speedy settlement of the estates of decedents with safety to those intrusted with their management. A claim may fall within the operation of the statute of non-claim before the statute of limitations commences to run on it, and although no right of action on it has accrued. As heretofore said by this court, "it is enough that the claim, the right to demand in the future, certainly exists. McDowell v. Jones, 58 Ala. 25, 33. It has been repeatedly held that the commission of a devastavit by an administrator or guardian, whether judicially ascertained or not, would constitute such a breach of the surety's bond as to be at once resolved into the accrual of a claim against the latter's estate, and thus put immediately into operation the running of the statute of non-claim. Fretwell v. McLemore, 52 Ala. 124; Taylor v. Robinson, 69 Ala. 269; Foster v. Holland, 56 Ala. 474.

The liability of a surety on an administrator's or guardian's bond may, it is true, be deemed contingent until the principal fails in the performance of some duty required of him by law. But upon the failure of such duty it becomes an absolute, presentable claim, although not yet payable or due. When, however, an action at law or a bill in equity will lie, in præsenti, against the principal and his sureties, to bring them jointly to a settlement of his guardianship or administration, it is clear that such right of action is an accrued claim, which falls within the operation of the statute of non-claim. Such, in...