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 — *Page 579
"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 Bibb 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 validity — how far he can proceed safely in the administration of the estate as solvent, and, if a mere statement of the claim is relied on as a presentment, that statement should describe the claim with such accuracy that it may be distinguished fromall similar claims." (Italics supplied.)
In Floyd v. Clayton, 67 Ala. 265, 269, it was said:
"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."
In Kornegay v. Mayer, 135 Ala. 141, 146, 33 So. 36, 38, it was said that the presentation must be such as "to give information of the character of the claim and of the amount of liability it imports."
Without extending the discussion further, we are constrained to the conclusion, in view of the simple nature of this claim — a mere legal liability, based upon the unauthorized appropriation of money — that the statement of this claim was sufficient to meet the requirements of the rule laid down by this court. The fact that the amount claimed by the statement filed is in excess of the amount sued for, or the amount actually due, is not of material importance, nor does it matter that the statement filed shows a liability in tort, while the form of the action is in general assumpsit, if the liability presented will support that form of action.
We hold that the trial court erred in excluding the statement from the evidence. We think that the ninth ground of the demurrers to defendant's special pleas 11, 12, 13, and 14 should have been sustained.
Manifestly, defendant's intestate, as husband of plaintiff's intestate, was the equitable owner of one-half of the money alleged to have been converted by him, by virtue of the statute (Code, § 3765), subject, of course, to the superior claim of the administrator of the deceased wife to recover it and apply it, if needed, to the payment of the debts of her intestate.
The authorities cited by appellee to the contrary are applicable to cases in equity, where, upon a showing that the husband is entitled to receive his share of his deceased wife's estate — there being no prior claims against it — the administrator will not be allowed to recover such share, or any part of it, already in the husband's hands. 11 Rawle C. L. 153, § 162. This doctrine of equity has been recognized by this court in Kennedy v. Davis, 171 Ala. 609, 615, 55 So. 104, Ann. Cas. 1913B, 225, but we are not aware of its application to cases at law by this court. Hence the pleas setting up this claim in favor of the husband are not sufficient to defeat a recovery by plaintiff of the husband's share of the personalty already appropriated by him.
Even under the equitable rule, the pleas in question would be subject to the seventh ground of the demurrers, because they fail to show an unincumbered right in the husband to retain his statutory interest as against the clear prima facie right of the administrator.
So far as this question is concerned, it makes no difference whether the defendant is claiming as a preferred distributee under section 3765 of the Code or as an heir under the general statute of descents and distributions, since the relative rights of the parties are the same in either case.
For the errors noted, the judgment of nonsuit will be reversed, and the cause will be remanded for further proceedings.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.