Roberts v. Grayson

• Decision Date: 18 February 1937
• Docket Number: 8 Div. 763
• Citation: 173 So. 38,233 Ala. 658
• Parties: ROBERTS v. GRAYSON et al.
• Court: Alabama Supreme Court

173 So. 38

233 Ala. 658

ROBERTS v. GRAYSON et al.

8 Div. 763

Supreme Court of Alabama

February 18, 1937

Rehearing Denied March 18, 1937

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Suit by Bonner Jones Roberts, as executrix of the will of Hattie Wellborn Jones, against Juliet W. Grayson, individually and as guardian of Elizabeth Judd and Elizabeth Judd Bowen. From a decree dismissing the bill, complainant appeals.

Reversed and remanded.

Watts &amp White, of Huntsville, for appellant.

David A. Grayson, Cooper & Cooper, and Taylor, Richardson &amp Sparkman, all of Huntsville, for appellees.

GARDNER Justice.

Following the ruling here on demurrer to the original bill ( Grayson v. Roberts, 229 Ala. 245, 156 So. 552) complainant filed an amended or substituted bill seeking only the sale of real estate for the payment of the debts of the estate of Hattie W. Jones, deceased--the sufficiency of which amended bill is not here questioned. The cause proceeded to trial on such bill, answer thereto, and proof as noted, resulting in a denial of the relief sought and dismissal of the bill.

There is here presented and argued but a single question of law, the facts being without dispute. That question relates to the claim of Caldwell, Laughlin, and McKissick, physicians and surgeons, for medical and surgical services rendered deceased through a long period of time, the correctness of which, as to amount, is not questioned. The objections to the validity of this claim as a proper charge against the estate are twofold, each of which has reference to our statute of nonclaim. Sections 5814 and 5818, Code 1923.

First, it is insisted the prepared itemized claim and verification relates to the estate of Mrs. J.C. Jones and not that of Hattie W. Jones, and reliance is had in the main upon Beene's Adm'r v. Collenberger, 38 Ala. 647, and Halfman's Ex'x v. Ellison & Son, 51 Ala. 543. These authorities have been read with care, but we think they are readily distinguishable on the facts, and a discussion of the points of differentiation need not be here entered into.

Here the proof discloses that Mrs. J.C. Jones and Hattie W. Jones were the same person, decedent being the widow of J.C. Jones, who had been dead a number of years. Admittedly, in a strict sense, decedent's name was not Mrs. J.C. Jones, as a married woman takes her husband's surname, with which is used her own given name: or, to state it differently, a married woman's name consists, in law, of her own Christian name and her husband's surname. 45 Corpus Juris, 369; note to Brown v. Reinke, 35 A.L.R. 413. But the Nebraska Supreme Court has, in Carroll v. State, 53 Neb. 431, 73 N.W. 939, 940, taken a very practical and common sense view of this question in the following language, which meets with our approval: "It is argued that 'Mrs. Fred Steinburg' was not the name of the witness, and this, being the name written on the instrument, was insufficient,--did not fulfill the requirements of the law. It must be said that, in a strict sense or meaning, this was not the name of the witness. A married woman takes her husband's surname, and by a social custom, which so largely prevails that it may be called a general one, she is designated by the use of the Christian name, or names, if he has more than one, of the husband, or the initial letter or letters of such Christian name or names of the husband, together with the appellative abbreviation 'Mrs.' prefixed to the surname; and all married women (there may be, possibly, a few exceptions) are better known by such name than their own Christian name or names, used with their husband's surname, and their identification would be more perfect and complete by the use of the former method than the latter. That knowledge of the identity of the witnesses to be produced against him be conveyed to the accused person is the main object to be accomplished by the indorsement of the names of witnesses on the information. This is the aim and purpose of the law by which such act is required."

Illustrative also is the question of suit and service of process. By the weight of authority, so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment as if served in his right name, it appearing he was duly served and failed to appear and plead in abatement, but suffered judgment by default. 21 R.C.L. 1325. Though it is well settled that creditors or any other person interested in the distribution of the estate have an equal right with the executor or administrator to insist on a plea of nonclaim, (McBroom v. Governor, 6 Port. 32; Fretwell v. McLemore, 52 Ala. 124, 140; Grayson v. Roberts, supra), yet the primary purpose of the statute was for the protection of the executor or administrator in the administration of the estate, and notice to him in regard thereto.

Perhaps this is better demonstrated by the discussion of the origin of the statute as found in Fretwell v. McLemore, 52 Ala. 124, on pages 139 and 140, which needs no repetition here. Other authorities are to the same effect. Bibb & Falkner v. Mitchell, 58 Ala. 657; Floyd v. Clayton, 67 Ala. 265; Halfman's Ex'x, v. Ellison, 51 Ala. 543; Smith v. Fellows, 58 Ala. 467; Burns v. Burns,

228 Ala. 61, 152 So. 48; First National Bank v. Love, 232 Ala. 327, 167 So. 703; Metcalf v. Payne, 214 Ala. 81, 106 So. 496. "Technical accuracy, the certainty of description essential in pleading, may not be observed, but the statement must, of itself, inform the personal representative, on an inspection of it, of the nature, character, and amount of the liability it imports, and must distinguish it with reasonable certainty from all similar claims." Floyd v. Clayton, supra.

Notice to the personal representative being the chief purpose of the statute, the question is whether or not the filing of this claim sufficed to meet the rule, that is, did it contain sufficient information which would stimulate inquiry and lead to a proper determination of the question of liability? As said in Floyd v. Clayton, supra: "The personal representative ought not to have looked alone to that entry. Imperfect as it is, it ought to have put him on the inquiry, and inquiry would have led him to the knowledge that the note itself was filed, and not a statement of it." It is the well-established rule that "what is sufficient to put one on his guard and call for inquiry is notice of everything to which the inquiry would lead." Home Bond & Mortgage Corp. v. Alabama Utilities Service Co., 225 Ala. 322, 323, 142 So. 827, 828.

The claim of Caldwell, Laughlin, and McKissick was duly itemized and verified, and correct in all particulars, with the exception of the name Mrs. J.C. Jones, rather than Hattie W. Jones. It was filed in the office of the probate judge and so remained on file. There was a docket entry of it made on page 72 of the record of claims, which entry reads:

"Claims against Estates.

Estate of Caldwell Laughlin & McKis

Mrs. J.C. Jones, sack Account $1773.00.

Mrs. Hattie W. Jones. Filed 8"9"30.

Administrator Poole's Funeral Home, Ac

Executor count $591.00. Filed 9"10"30."

Clearly a personal representative must be wholly ignorant of the decedent and her affairs as well as her name for such an entry not to excite inquiry in regard to both claims, though the first was incorrectly designated in the initials of the given name of decedent's husband. So far as concerns this particular case, there could of course be no doubt, as the executrix was decedent's only child and sole devisee under her will....