White v. Blair

• Decision Date: 11 March 1937
• Docket Number: 7 Div. 409
• Citation: 234 Ala. 119,173 So. 493
• Parties: WHITE et al. v. BLAIR.
• Court: Alabama Supreme Court

173 So. 493

234 Ala. 119

WHITE et al. v. BLAIR.

7 Div. 409

Supreme Court of Alabama

March 11, 1937

Rehearing Denied April 15, 1937

Appeal from Circuit Court, Cherokee County; A.E. Hawkins, Judge.

Action by B.R. Blair against Ruth Lowe White and Lamar Lowe, as administrators de bonis non of the estate of C.N. Lowe deceased. From a judgment for plaintiff, defendants appeal.

Affirmed.

Reed &amp Reed, of Center, for appellants.

Irby Keener, of Center, and W.T. Murphree, of Gadsden, for appellee.

FOSTER Justice.

This is a suit on a promissory note executed by J.R. Lowe & Co., J.R Lowe, and C.N. Lowe. The defendants are alleged to be administrators de bonis non of C.N. Lowe, deceased. The other makers of the note are not sued, which is, of course, within the right of plaintiff. Section 5719, Code.

Pleas 1 and 2 were in substance the general issue, which cannot also be a plea in confession and avoidance. It is immaterial that plea 2 adds the statement that the debt was that of J.R. Lowe or of J.R. Lowe & Co. That adds nothing to its effect.

Pleas 3, 4, and 5 are nonclaim under sections 5815 and 5818, Code. To them, plaintiff replied specially that the note was presented to the administrator within twelve months after the death of decedent (changed now to six months by Acts 1931, p. 840), and that the administrator acknowledged the correctness of said claim and agreed to pay the same out of the assets of said estate.

The demurrer was on general grounds, and pointed out no specific defect. Its legal effect is the same as the replication held to be not subject to such demurrer in White v. Sowell, 231 Ala. 80, 163 So. 609.

Plaintiff's son, Hugh Blair, testified that around the last of January or the first of February, 1931, after C.N. Lowe died in November, 1930, he went with his father to see J.R. Lowe who had, on January 9, 1931, been appointed administrator of the estate of C.N. Lowe. That plaintiff then showed the note to J.R. Lowe, who made the following remark to plaintiff: "That the business was going on as it was and he was going to have Lamar, he wasn't hardly twenty-one, he was going to have his nonage set aside and transact the business right along, that he could pay the note off at that time but if he would let him he would like to keep it through the fertilizer season, that they still had a little money coming from C.N. Lowe's road work, C.N. Lowe had the road contract. *** There was some money coming into the estate, he said final payment had not been made on some contract work they had done. He did not name any time when the note would probably be paid, he did not name any special time, he just wanted to keep it a while longer." And at a later date, about five or six months, he heard another conversation between them as follows: "J.R. Lowe came in and papa offered to pay him for some coal and had the note with him and said 'That is all right, we will have a settlement between us and we will take care of that.' *** 'Yes, that is my note and I will pay it, this is a just and honest debt.' J.R. Lowe was then in business, and he said he could pay it then, and he asked my father to permit him to use the money through the fertilizer season." This witness was not disqualified under section 7721, Code. If the transaction was a presentation under section 5818, Code, it was legal evidence. Because it was of a conversation between plaintiff and J.R. Lowe did not make it objectionable as hearsay, if thereby a presentation was effected. The amendment to section 5818, Code, Acts 1931, p. 837, does not apply.

To constitute a sufficient presentation, the nature and amount of the claim must be brought to the attention of the personal representative by the proper person, and he should notify the representative expressly or impliedly that the estate is looked to for payment. Smith v. Fellows, 58 Ala. 467; First Nat. Bank v. Love, 232 Ala. 327(19), 167 So. 703.

If the note is exhibited to the administrator, and he acknowledges its correctness as a claim against the estate, or agrees to pay it out of the estate, a presentation is shown under section 5818 prior to its amendment. The effect of the quoted testimony would be sufficient without question, if the administrator had not then been also liable personally, as a joint maker of the note. When ...