Watson v. Hamilton

• Decision Date: 29 November 1923
• Docket Number: 7 Div. 407.
• Citation: 210 Ala. 577,98 So. 784
• Parties: WATSON v. HAMILTON.
• Court: Alabama Supreme Court

98 So. 784

210 Ala. 577

WATSON v. HAMILTON.

7 Div. 407.

Supreme Court of Alabama

November 29, 1923

Rehearing Denied Jan. 24, 1924.

Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.

Action in general assumpsit by Mentie C. Watson, as administratrix of the estate of E. E. Hamilton, deceased, against Cora A Hamilton, as administratrix of the estate of N. O. Hamilton deceased. In consequence of adverse rulings on pleading and evidence, plaintiff takes a nonsuit and appeals. Reversed and remanded.

J. S McLendon and Rudulph & Smith, all of Birmingham, for appellant.

Merrill & Allen, of Anniston, for appellee.

SOMERVILLE J.

The important question presented by the record is upon the sufficiency vel non of the presentation of the claim which is the foundation of the suit, to prevent the operation of the statute of nonclaim (Code, § 2590) in favor of the estate of the defendant's intestate.

The affidavit of claim, which was presented to the defendant administrator by filing in the probate office, stated that-

"The estate of N. O. Hamilton is justly indebted to the estate of E. E. Hamilton in the sum of $2,120.49; that the indebtedness became due to the estate of E. E. Hamilton, now deceased; the said amount became due the said estate by reason of the conversion of [by] said N. O. Hamilton, during his lifetime, of said sum of money, which said sum of money belonged to E. E. Hamilton, and was wrongfully converted by the said N. O. Hamilton on, to wit, July 17, 1909. Affiant further deposes and says that said amount is justly due the estate of E. E. Hamilton, and that it nor no part thereof has been paid. Affiant further deposes and says that, by reason of the fraud of the said N. O. Hamilton, and through no fault of affiant, the fact of the conversion of said sum of money did not become known to affiant until on, to wit, July 8, 1921."

The complaint herein, as amended, claims of the defendant "the sum of $2,085.76, for money received by N. O Hamilton, defendant's intestate, on, to wit, July 17, 1921, to the use of plaintiff," with an allegation that plaintiff had filed a statement of the claim in the probate judge's office within the time allowed by law.

The bill of exceptions shows that the objection to the admission of the duly certified copy of the affidavit and claim of indebtedness was solely upon the ground of the insufficiency of the statement of the claim; that is, that it was too indefinite and incomplete to properly inform the administrator of the nature and validity of the claim.

In a very early case (Bigger v. Hutchings, 2 Stew. 445, 448) it was said: "The original bond, note, or contract on which the debt accrued, or at least an abstract, or copy, should be presented as evidence of the claim, and if the claim arise on an open account, unliquidated demand, verbal contract, or legal liability, it should be reduced to writing, and be so presented."

In Posey v. Decatur Bank, 12 Ala. 802, it was said that-

"All that is necessary is to give him [the personal representative] notice of the existence of the debt, and that the holder looks to the estate for payment."

In Smith v. Fellows, 58 Ala. 467, 472, it was said by Stone, J.:

"The result of our rulings on this question is that to constitute a sufficient presentation the nature and amount of the claim must be brought to the attention of the personal representative by some one authorized in law or fact to make the presentation, and the representative must be notified, expressly or impliedly, that the estate is looked to for payment." (Italics supplied.)

In Bib & Falkner, Ex'rs, v. Mitchell, Adm'r, 58 Ala. 657, 664, it was said, by Brickell, C.J.:

"A presentment which will avoid the bar of the statute must be more than enough merely to excite the inquiry of the personal representative, it must give such information of the existence of the claim that he may determine-assuming its

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