Moore v. Stephens, 6 Div. 722

• Decision Date: 19 January 1956
• Docket Number: 6 Div. 722
• Citation: 264 Ala. 86,84 So.2d 752
• Parties: E. C. MOORE, as Adm'r, v. Myrtie A. STEPHENS, as Adm'x.
• Court: Alabama Supreme Court

Page 752

84 So.2d 752

264 Ala. 86

E. C. MOORE, as Adm'r, v. Myrtie A. STEPHENS, as Adm'x.

6 Div. 722.

Supreme Court of Alabama.

Jan. 19, 1956.

Walter G. Woods, Tuscaloosa, for appellant.

Dominick, Rosenfeld, Roberts & Beatty and Samuel A. Beatty, Tuscaloosa, for appellee.

MERRILL, Justice.

Appellant, plaintiff below, sued appellee alleging a cause of action for wrongful death under Title 7, Sec. 123, Code 1940. Appellee filed a special plea setting up the statute of nonclaim, Title 61, Sec. 211, Code 1940. Issue was joined on this plea, and the judge gave the affirmative charge for the appellee. From the judgment rendered on the verdict pursuant to the charge, appellant has taken this appeal.

The facts out of which this litigation arose follow. Appellant's intestate Anna D. Moore, deceased, was injured in an automobile accident on February 2, 1952 and died on September 8, 1952. Appellee's intestate, Callie Stephens, deceased, was the driver of the automobile in which Anna D. Moore was riding when she was injured, and Callie Stephens died on February 2, 1952, the date of the accident. Appellee was appointed administratrix of his estate and was granted letters of administration by the Probate Court of Tuscaloosa County on February 14, 1952. This suit was filed on December 8, 1952, more than nine months after the granting of letters of administration.

It is agreed and stipulated between the parties that the sole issue to be decided here is whether Title 61, Sec. 211 constitutes a bar to this action. Appellant admits that no suit or claim of any kind arising out of the cause of action alleged in his complaint was ever filed against the estate of Callie Stephens, deceased, with the Probate Judge, nor in Probate Court, nor with appellee within six months from the grant of letters of administration.

Title 61, Section 211 provides:

'All claims against the estate of a decedent, other than the claims referred to in the preceding section, whether due or to become due, must be presented within six months after the grant of letters testamentary or of administration; and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited. Such presentation must be made by filing a verified claim or verified statement thereof in the office of the judge of probate of the county in which the letters are granted; but claims which have not been filed and which are liens against the real or personal property of the decedent may be paid by the personal representative to protect the assets of the estate.'

Appellant contends that this statute has no application to a claim arising out of a tort. We have been cited no case, nor does our research disclose a case wherein we have decided the instant question.

Through the years this court has recognized one exception to the requirement in the statute of nonclaim, and that exception is where the claim is a contingent one. A discussion of the progenitor of Title 61, Sec. 211, the exception, and what constitutes a contingent claim is found in Fretwell v. McLemore, 52 Ala. 124, 140-141, where the court, Chief Justice Brickell writing, said:

'The language of the statute is clear, unambiguous, and comprehensive. Words more significant to express every demand to which a personal representative can or ought to respond, or which can charge the assets in his hands subject to administration, or more expressive of every legal liability, resting upon the decedent, could not have been employed. 'All claims against the estate of a deceased person,' is the language of the statute. A claim, said Judge Story, in a just, judicial sense, is 'a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty'. [Prigg v. Pennsylvania] 16 Pet. (539) 615 . All claims whether absolute or conditional, whether payable presently or in the future, are within the statute. Jones [Ex'rs] v. Lightfoot, supra ; King & Barnes v. Mosely, 5 Ala. 610; Painter v. Smith, 2 Root (Conn.) 142. It is only contingent claims--claims which may never accrue--that fall within the provision postponing a presentment 'until eighteen months after the same have accrued'; such as the liability of a surety who has no demand against the principal until his payment of the debt for which he is bound. Neil v. Cunningham's Ex'rs, 2 Port. 171; McBroom v. Governor, 6 Port. 32; Cawthorne v. Weisinger, 6 Ala. 714; Hooks & Wright v. Br[anch] Bank [at] Mobile, 8 Ala. 580; Minter and Gayle v. Br[anch] Bank [at] Mobile, 23 Ala. 762 . Or the claim which was the subject of suit in Pinkston v. Huie, (9 Ala. 252), dependent on a future contingency which might never happen. 'But the contingency excepted from the operation of the statute cannot depend upon the action of the court in granting or refusing relief. If the party is not entitled to a judgment or decree at the hands of the court, he has no claim against the estate, and there is an end of the controversy. If he is, it cannot be considered as contingent, whether it will be granted or refused.' Jones v. Lightfoot, supra.'

Other cases which recognize the existence of the quoted exception are McDowell v. Jones, 58 Ala. 25; Farris v. Stoutz, 78 Ala. 130; Chamblee v. Proctor, 203 Ala. 61, 82 So. 21; Dallas Compress Co. v. Liepold, 205 Ala. 562, 88 So. 681; Murwin v. Birmingham Trust & Savings Co., 237 Ala. 100, 185 So. 756. None of these cases, however, are authority for the proposition that claims arising out of tort are contingent claims to which the statute has no application.

There is an expression in the case of Roche Undertaking Co. v. De Bardelaben, 7 Ala.App. 232, 60 So. 1000, which indicates that the court considered tort claims to be subject to the statute of nonclaim, but the statement is dictum. The Court of Appeals was showing that a claim for funeral expenses was against the personal representative and not against the decedent. The court said: 'When he [the personal representative] has paid such funeral expenses, his claim against the estate, for reimbursement or credit therefor--unlike claims held by him against the estate arising under contracts made or torts done by the deceased in his lifetime--does not have to be formally verified and filed, like they do, as a claim against the estate'.

In our case of Ex parte Zepernick, 259 Ala. 493, 66 So.2d 757, where a claim was filed in probate court for wrongful death within the time required by the statute of nonclaim and suit also brought in the circuit court, we refused to prohibit the circuit judge from trying the cause where there had been no contest of the claim in the probate court prior to the filing of the suit in the circuit court, but expressly found that it was not necessary to decide whether a tort claim is required to be filed in the probate court. In our more recent case of Barrett v. Fondren, 262 Ala. 537, 80 So.2d 243, 246, we held that the filing of a suit in circuit court within the six months obviated the filing of the claim in the probate court within the six months, but in that case also it was not necessary to decide whether tort claims are within the statute of nonclaim, although there is a discussion of the question, and we pointedly invited the legislature, which was to meet shortly in regular session, to 'clear up the difficulty'. No action was taken by the legislature.

An examination of some of the authorities from other jurisdictions is convincing that the decided weight of authorities requires the filing of notice of a tort claim within the time provided in the statute of nonclaim. See 21 Am.Jur., Executors and Administrators, Sec. 352, p. 581; 34 C.J.S., Executors and Administrators, § 398, p. 166.

In Rhode Island, the statute, Gen.Laws 1909, c. 314, § 3, provides that 'All persons having claims, including pending suits, preferred claims, and claims of the executor or administrator, against the estate of a deceased person shall file statements of their claims in the office of the clerk of the probate court.' In Hicks v. Wilbur, 38 R.I. 268, 94 A. 872, 874, a leading case on the subject before us, the court said:

'A claim in tort, as to which a right of action arose immediately upon the doing of a wrong, may not be proved as a debt, but it is by no means a contingent claim. Whether the claimant in tort will recover, is uncertain; but this is true of all claimants, whatever be the nature of their claims, whether for liquidated or unliquidated damages or whether the claim arises in tort or in contract; and, if such claimants are allowed to recover, the amount of the damages which may be awarded is uncertain, but these circumstances do not render their claims contingent. A 'contingent claim,' within the meaning of the statute, is one that depends for its effect upon some furture event which may or may not happen. Until that event happens a right of action upon said claim does not arise. The evident purpose of the statute would be defeated if we should exempt from its operation persons having claims arising in tort or for unliquidated damages'.

In Massachusetts, the statute provided that an action for either bodily injury or property damage was barred by the statute requiring a creditor of a decedent to commence his action against the executor or administrator within one year and the court said 'one who has a cause of action in tort that survives is a 'creditor' within that statute'. Mulligan v. Hilton, 305 Mass. 5, 24 N.E.2d 676, 678, 133 A.L.R. 376.

In Indiana, the statute, Burns' Ann.St. § 6-1001, provided 'No action shall be brought by complaint and summons against the executor or administrator of an estate for the recovery of any claim against the decedent, but the holder thereof, whether such claim be due or not, shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate is pending * * *'. The court said 'the phrase 'any claim' is...