
    Aycock, Admr. v. Johnson, Executrix.
    
      Action on Promissory' Note.
    
    1. Statute of non-claim; act of Dec. 9, 1896, construed. — The act of Dec. 9, 1896, (Code of 1896, §130), amending the former statute .of non-claim, and fixing twelve months as the time within Which claims must, he presented, operates prospectively only, upon all claims, whether they accrued prior or subsequent to its enactment but not so as to allow a longer period than eighteen, months to -claims which had accrued during the existence of the former statute.
    2. .Illustration; when, amended statute cannot he pleaded. — If the former statute of-eighteen months had been running'against a claim for less than six months, when the amendatory statute was enac,ted, such, time would, not ,be computed as a part of the, twelve months allowed by the amended statute, but the party would be allowed twelve months after its enactment; but if the statute of eighteen months had been running more than six month's, the amended act would not give the holder of the claim twelve additional months within which to pre- - - sent his claim, nor could the latter act be pleaded in -bar because the claim had not been presented in twelve months. The. holder of the claim would be allowed the-benefit of the statute of eighteen months, but not a longer period:
    '3. Relevancy . of evidence; construed in the light op all the evidence. — There is no error in the admission of testimony, which, standing alone, does not appear to be relevant, but when considered in connection with the other evidence, its relevancy becomes apparent.
    4. Presentation, 'when sufficient. — Where the evidence shows, that a - demand was made upon an administrator as such to pay certain notes, -described by naming the makers merely and the amount due thereon, and it is shown the administrator knew ■ what claims were referred to, and by whom they were held, is a sufficient presentation.
    Appeal from Colbert Circuit Court. .
    Tried before Hon. Thos. R. Roulhae.
    This action was brought September 1, 1897, by the appellee, Kate M. Johnson, as executrix of the estate of W. A. Johnson, deceased, against the appellant, Robert Aycock, as administrator'of the-estate of John Aycock, deceased. .
    The complaint counted upon two notes, under seal, executed by the defendant’s intestate and one H. T. Cullender, on February 16, 1889, and payable one day after date to the order of W. A. Johnson. The defendant pleaded the general issue and two special pleas. The first of these special pleas set up the fact that t'lie note or bonds described in the complaint were not presented to the defendant, nor a statement thereof filed, nor said claims docketed in the office of the judge of probate of Colbert County,' Alabama, “within eighteen months after the granting of letters of administration to the defendant; or within eighteen months from the 25th day of February, 1896;. or within eighteen months after the accrual of said claims.” '■ ' ■ ■
    .Thesecond plea set up that said notes or-bonds had not been presented, to the defendant, or a statement thereof fifed, or said claims docketed in the office of the probate judge of Colbert County, Alabama, ■ “within twelve .months after the granting of. letters of administration to the defendant, or within twelve- months from the 25th of. February, 1896, or within twelve months after the accrual of said claims.”
    The plaintiff moved to strike from the file the second .plea, because section 2081 of the Code of 1886 governed said case, and not t'he act approved December 9, 1896, amendatory of said section 2081. The court sustained this motion, struck-the second plea from the file, and to this action of the- court the defendant duly excepted.
    The plaintiff introduced in-evidence the two notes sued upon, each of which were signed by H. T. Cullender and John Ay code. . The plaintiff then introduced as 'a witness one TV. E.- Aycock, who testified -that the1 plaintiff, some time in the spring of 1897, told him to see the defendant and tell him that she wanted the' defendant to come and see her about the Aycock and Cullender notes'; that he saw the defendant, Bob Aycock/a short time afterwards and told him what Mrs. Johnson had requested him to do; but that he did not remember what' t'he defendant said about the notes. The defendant'moved to exclude this evidence, because it was irrelevant, illegal and immaterial. The court overruled- this motion and allowed the evidence to go to the jury, and to this action of the court the defendant duly excepted: -This witness, on cross-examination, testified, that he' never saw' the notes, nor did he show them to the defendant; that he did not know the amount of them, and did not know how many there were; and that Mrs. Johnson did not tell him whether the notes belonged to her individually, or as executrix of the-estate of W. A. -Johnson.' Upon this witness so testifying, on cross-examination, the defendant moved to exclude the testimony of'said witness'from'the ■jury, because .it failed to show any 'presentation of the claim by the plaintiff, and because -it was irrelevant and immaterial; but the court overruled said motion, and to this ruling the defendant duly excepted.
    Dick Johnson,'a son of the plaintiff, was introduced. and testified that he was given authority by his mother to collect the notes, and that as soon' as 'the defendant was appointed administrator of John'Aycock’s estate he requested him to pay the Aycock and Cullender notes, and in April, 1897, he told the defendant he would give him sixty days to pay the amount thereof, and save the necessity for a suit; that he told Aycock, the defendant, that the notes amounted to $800 on their face, but there were several credits. That the defendant requested him to make a statement óf the amount due oh the notes, and in April requested him to write him what was the amount due thereon. That in June, 1897, he wrote a letter to the defendant giving him the amount due according to his calculation of the interest, and demanded the payment of the two notes' as soon as possible, and therein notified him as administrator that hé would file the claim in a week. This witness further testified that in a conversation with the defendant, the latter told him that he, the witness, could rest easy, and that he would see Cullender and fix the matter up; that subsequently the defendant paid the witness' $65 on ' the notes, which the witness credited thereon. This witness further testified that he told the defendant that he wanted to collect the notes for his mother as executrix of the estate of W. A. Johnson; and that the notes belonged to his mother, as executrix.
    The defendant, Robert Aycock, as a witness, testified that he was appointed administrator of his father’s estate on February 27, 1896; that he paid the $65 credited on said notes, as testified to by the witness, Dick Johnson, but that Cullender gave him the money; that Dick Johnson had mentioned the notes to him, but that he told Johnson he could not do anything with them then; that he never had any conversation with the plaintiff, Mrs. Johnson, but that W. E. Aycock spoke to him in the spring of 1897, and told him that Mrs. Johnson said that she wanted to see him about the Aycock and Cullender notes; that W. E. Aycock never told the defendant the amount of the notes, nor the date, but simply told him that Mrs. Johnson wanted to see him about the Aycock and Cullender notes. This witness further testified that when Dick Johnson spoke to him about the notes, he did not say whether he represented his mother, or whether the notes belonged to him; that from his letter, he inferred that they belonged to Dick Johnson, as he had never been told in conversation whether the notes, re-: ferred to belonged to 'him indiyidnally or-to his .mother as executrix of the estate of W. A. Johnson, or whether they belonged to Mrs. Johnson individually. That he never agreed to pay the notes sued upon, as administrator,. ,and had never made any payment on the same, as administrator. Ón cross-examination, this witness testified that he did not know how many of the Cullender and Aycock notes there were; that he did- not know, w'hat notes were referred to by the Aycock and Cullender notes; that when W. E.. Aycock spoke to him about them that he supposed Mrs. Johnson owned them, and that they were the same notes sued on;.that he did not know anything ab.out Mrs. Johnson being the executrix; and that he supposed the notes Mrs. Johnson held and wanted to see him about Avere the same notes that Dick Johnson spoke to him about.
    In answer to questions from plaintiff’s counsel as to what he understood from the message delivered to him by W. E. Aycock from Mrs. Johnson, he anSAvered, that 'he understood that she Avanted to see him about the notes made by Cullender and his father to W. A. Johnson, and that he never knew of any other. When asked if he did not know that the plaintiff was the executrix, and had charge of her husband’s estate, he answered: “Yes, I suppose I did.” Upon being asked if he did not know and understand that Avhen Dick Johnson spoke to him about the notes that they were the ones about Avhich Mrs. Johnson sent him the message by W. E. Aycock, the defendant, as a Avitness, ans.Avered, “Yes, I suppose they were the ones, I never heard of any other.”
    Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in her behalf, and to the giving of this charge the defendant duly excepted.
    There Avere verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reseiwed.
    W. P. & W. L. Chitwood, for appellant.
    — The act of December 9, 1896, related to the remedy merely, and applied to existing causes of action. — .Coocllett v. Kelly, 74 ■Ala. 213; Coosa River Steamship Co. v. Barkley & Hen
      derson, 30 Ala. 120; 23 Am. & Eng. Encyc. Law, 450-1-2. The burden was on plaintiff to prove presentment... The ■evidence was in conflict, and the defendant’s evidence failed to show a legal presentment. The affirmative charge for plaintiff should not gave been given.- — Mitchell v. Lea, 57 Ala. 46’; Smith v:Fellows, 58 Ala. 473; Bibb v.-Mitchell, 58 Ala. 657; Allen v. Elliott, 67 Ala. 432; McDonald v. Jones, 58 Ala. 25; Oioen v. Corbett, 57 Ala. 92; Hallett v. Branch Bank, 12 Ala. 193; Flinn v, Shacklegord, 42 Ala; 202; Payne v. Bartlett, 101 Ala.193; 5 Am. & Eng. Encyc. of Law, 217-8-9.
    Kirk & Aiaiok, contra.
    
    The statute of non-claim of eighteen months applies to the case. The suit ivas brought within less than twelve months of the aiiienda■tory 'act, and if it could apply, it was no 'defense in this case, and was properly striken' 'from the file. It Avas only necessary for the plaintiff to proAre tliat the nature and amount of the claim Avas brought to tiie attention of the defendant by some one authorized, and notified, expressly or impliedly, that the estate was looked to for payment. Defendant admitted a' presentation and the ■affirmative charge was properly, given. — Bridges v. T. G., I cC- R. R. Co., 109 Ala. 287; Davidson v. State, 63 Ala. 432; Scarborough v:Malone, 67'Ala.' 570; Smith v. Fellows, 5-8'Ala. 472; Pharis v. Leach, 20 Ala. 662; Pollard v. Scears, 28 Ala. 487:
   COLEMAN, J.

The appellee, as administratrix of the estate of W. A. Johnson, brought suit upon a promissory- note, against the appellant, as administrator of the estate of John’Aycock. It is hot controAmrted that defendants intestate executed the note sued upon. The defendant pleaded'the statute of non-claim of twelve months and of eighteen months. The suit Avas instituted on the 1st day of September, 1897. Neither of said pleas of non-claiui are technically correct, in the averment that the claim sued' upon was not presented within eighteen months, or Avithin twelve months from the 25th day of February, 1896. There is nothing in the complaint or the plea from AAThich can be determined the pertinency or relevancy of the 25th day of February, 1896. We find from the bill of exceptions that letters of administration were-granted the defendant the 27th of February, 1896. The plea ought to have averred a further fact, giving the date of the grant of letters of administration, and thereby have shown the materiality of the averment that the claims were not presented within the time mentioned from the date of the grant of letters of administration. Prior to December 9th, 1896, the statute of non-claims required the presentation of claims within eighteen months. By statute of that date (see Acts, 189.6-97, p. 156), the former statute was amended, and twelve months fixed as the time within which claims must be presented. — Code, 1896, §130. The question intended to be presented for review- by this appeal is, whether or not the present statute acted retroactively and barred the plaintiff’s right to. recover. As shown by the facts stated above, the suit was instituted within less than • twelve months after the enactment of the present statute. Our construction of the statute is, that it operates prospectively only, upon all claims, whether they accrued prior or subsequent to its enactment, but not so as to allow- a longer period than eighteen months to claims which had accrued during the existence of the former statute. To illustrate: If the statute of eighteen months had been running against a claim for one month, when the amendatory statute Avas enacted, the one month w-ould not be computed as a part of the twelve months alloAved by the amended statute, but the party Avould be allowed tAvelve months after its adoption. On the other hand, if the statute of eighteen months had been running against a claim for fifteen months, the amended act Avould not give the holder of the claim tAvelve additional months within Avliicli to present his claim, nor could the latter act be pleaded in bar, because the claim had not been presented within twelve months. The holder of the claim would be allowed the benefit of the statute of eighteen months, but not a longer period. As the suit was instituted within less than twelve months after the present statute Avas enacted, the plea of the statute of twelve months, without further averments than those contained in the plea, presented no defense to the action. — Rawls v. Kennedy, 23 Ala. 240.

There Avas no error in admitting the testimony of the witness, W. E. Aycock. Standing alone, its relevancy might not be apparent, bnt considered in connection Avitii the other evidence in the case, and especially in connection with that of the defendant elicited bn his cross-examination, there can he no doubt of its relevancy and materiality. ■.

After the ■ evidence had closed, the court gave the affirmative charge for plaintiff as to the defendant’s plea of the statute of non-claim of eighteen months. The law has been so often declared as to what constitutes a presentment, we deem it unnecessary to repeat it. See decisions collected under section 130 of the Code of 1896. ■

While there is some conflict as’ to the number of conversations had between the witness Johnson and the defendant, and some conflict as to some facts in the case, the uncontroverted facts show a legal presentment of the claim to the defendant. There is no error in the record.

Affirmed.  