Patterson v. Weaver
Decision Date | 14 April 1927 |
Docket Number | 8 Div. 893 |
Citation | 114 So. 301,216 Ala. 686 |
Parties | PATTERSON v. WEAVER et al. |
Court | Alabama Supreme Court |
Rehearing Denied June 2, 1927
Further Rehearing Denied Oct. 27, 1927
Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.
Bill in equity by John C. Patterson, as administrator of the estate of Laura A. Patterson, deceased, against L.A. Weaver individually and as executor of the estate of Sarah J Weaver, deceased, and Blanche K. Weaver. From a decree denying relief, complainant appeals. Affirmed.
Mitchell & Hughston, of Florence, for appellant.
Simpson & Simpson, of Florence, for appellees.
The error assigned challenged the rendition of the decree denying relief. The assignment of errors will be considered in the order presented by respective counsel.
The bill was by an administrator to remove the administration of an estate to the equity division of the circuit court, and for accounting and collection of a legacy, with interest from properties of the estate conveyed by the executor to his wife. The bill was filed July 16, 1924. The demurrer contains grounds that the bill shows on its face that it is barred by the statute of limitations.
Certain facts are undisputed. In the will of Mrs. Weaver, complainant's intestate was left a legacy of $2,000, by will probated in this state February, 1908, when L.A. Weaver was appointed executor, and that he made no formal settlement of his administration, that in 1917 he conveyed lands devised to him by his wife, and that no consideration was paid therefor. It is further admitted that Laura A. Patterson, at the time of her death, in 1915, was a resident of Tennessee; owned property in this state, including the legacy; that complainant, J.C. Patterson, was appointed administrator of her estate in Lauderdale county, Ala.; that in 1915 Weaver paid $150 to J.H. Patterson, the husband of Laura A. Patterson; that under the laws of Tennessee, at the time of the death of said Laura A. Patterson, "all the property of the wife passed to the surviving husband, subject, however, to debts"; and that said husband survived her. It is further shown that Weaver qualified as executor of the estate of Mrs. Sarah J. Weaver; took charge of her personalty; rented the land, and intermingled the estate's funds with his own; made no settlement to court; conveyed realty to his wife in 1917, yet continued in visible possession thereof, treating same as his own; that there were debts of the estate of Sarah J. Weaver, but no claims were presented as required by law; that the legacy to Laura A. Patterson has not been paid in full.
The pertinent question is whether the action is barred by the statute of limitations, or whether the rule of repose obtains. In Rhodes Ex'r v. Turner, 21 Ala. 210, it was declared that at common law the statute of limitations did not apply to such actions, but that the period of prescription or the presumption after 20 years is the bar to such action. 1 A.L.R. 785, 816, 828.
The doctrine is broader than mere statute of limitations, though on analogous principles. Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124; Kidd v. Browne, 200 Ala. 299, 303, 76 So. 65.
The presumption of payment from the lapse of time is applicable to legacies and distributive shares. Rhodes v. Turner, supra; Barnett v. Tarrence, 23 Ala. 463; Blackwell's Case, 33 Ala. 57, 70 Am.Dec. 556; Austin v. Jordan, 35 Ala. 642; Worley v. High, 40 Ala. 533; Ragland v. Morton, 41 Ala. 344, 91 Am.Dec. 516; Harrison v. Heflin, 54 Ala. 553; Greenlees' Case, 62 Ala. 330; Bonner v. Young, 68 Ala. 35; Werborn v. Austin, 82 Ala. 499, 8 So. 280.
In Snodgrass v. Snodgrass, 176 Ala. 276, 280, 281, 58 So. 201, Mr. Justice Simpson well said:
'
And in South v. Pinion, 207 Ala. 122, 92 So. 420, it is said:
This rule has been uniformly followed by this court. Randolph v. Hubbert, 190 Ala. 610, 67 So. 416; Kidd v. Browne, 200 Ala. 299, 76 So. 65; Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124; Scott v. Scott, 202 Ala. 244, 80 So. 82; Galloway Coal Co. v. Warrior Black Creek C. Co., 204 Ala. 107, 85 So. 440; Heflin v. Heflin, 208 Ala. 69, 74, 93 So. 719; Spencer v. Hurd, 201 Ala. 269, 77 So. 683, 1 A.L.R. 761; Graham v. Graham, 202 Ala. 56, 79 So. 450.
The doctrine is such presumption can only be used as a shield and not for affirmative relief. Rankin v. Dean, 157 Ala. 490, 47 So. 1015; Heflin v. Heflin, 208 Ala. 69, 93 So. 719. This question was not presented in Spencer v. Hurd, 201 Ala. 269, 77 So. 683, 1 A.L.R. 761.
The presumption is raised after the lapse of twenty years from when the debt "is due or demandable." Braun v. Pettyjohn, 176 Ala. 593, 58 So. 907; Birmingham Realty Co. v. City of Birmingham, 205 Ala. 280, 87 So. 842; Diemer v. Sechrist, 1 Pen. & W. (Pa.) 419; Belfer v. Ludlow, 143 A.D. 147, 127 N.Y.S. 623; Id., 69 Misc.Rep. 486, 126 N.Y.S. 130. Special circumstances have arisen as settlement of a guardianship, claims against executors and administrators, and such periods are computed, not from the grant of letters or of administration, but from the date when settlement could and should have been made. Garrett v. Garrett, 69 Ala. 429; Greenlees' Case, 62 Ala. 330; McCartney v. Bone, 40 Ala. 533; Rhodes v. Turner, 21 Ala. 210; Birmingham Realty Co. v. City of Birmingham, 205 Ala. 280, 87 So. 842. See authorities collected in 1 A.L.R., pages 815 et seq.
In Veitch v. Woodward Iron Co., 200 Ala. 358, 363, 76 So. 124, 129, it is declared:
And in South v. Pinion, 207 Ala. 122, 92 So. 420, it is said:
See, also, Heflin v. Heflin, 208 Ala. 69, 74, 93 So. 719.
It follows from the foregoing authorities that the bill was not filed after the intervening of the bar of statute or rule of repose.
Had the complainant, as administrator of Laura A. Patterson, the right to maintain the suit? As stated, Laura A. Patterson the beneficiary...
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