
    Reynolds v. Crook.
    
      Mandamus to Chancellor, in matter of Revivor.
    
    1. Filing claims against decedent’s estate in equity, under order of court; renivor of claim; mandamus. — When the administration of a decedent’s estate has been removed into equity, under hill filed by the administrator, and that court has made an order requiring creditors to file their claims within a specified time; if a creditor’s claim is filed, proved, reported valid by the register under a reference, and his report confirmed without objection; and the creditor then moves to set aside the order requiring claims to be filed, but dies before his motion is acted on, and before formal decree has been entered allowing his claim, his personal representative, or the succeeding administrator dr bonis non of the estate which he represented, may intervene by motion or petition, for the purpose of prosecuting the claim and the pending motion to a final determination ; and if his motion or petition is overruled and refused, this court will award a mandamus to compel its allowance.
    2. Keoiuor of judgment against, decedent. — Under statutory provisions, a judgment recovered against the decedent in his life-time can not be revived or enforced against his administrator except by suit (Code, § 2880); but, when the judgment has been filed as a claim against the decedent’s estate, under an order of court made in a pending chancery suit, and the creditor dies before its final determination, the right of revivor is secured to his personal representative by other statutory provisions (§§ 2265, 2608), and the former statute does not apply.
    Eeom tbe Cbaucery Court of Talladega.
    Heard before tbe Hon. S. K. MoSpaddeN.
    In tbe matter of tbe estate of Edward Gantt, deceased, tbe administration and settlement of wbicb was removed into tbe Chancery Court, under a bill filed by tbe administrator, May 28tb, 1878. Ontbel7tb February, 1881, tbe court made a de-cretal order assuming jurisdiction of tbe estate, and ordering a transfer of tbe papers from tbe Probate Court; and another order was made, at tbe instance of tbe administrator, on tbe 21st April, 1886, requiring creditors to file tbeir claims against tbe estate with tbe register witbin 120 days. A claim was filed, but at tbat time tbe record does not show, by Mrs. Hannab E. [Reynolds, as administratrix of tbe estate of Walker Eeynolds, deceased; wbicb claim consisted of tbe record of a judgment wbicb said Walker Eeynolds bad recovered against said Edward Gantt in October, 1867. Tbis transcript was afterwards withdrawn, but seems to bave been again filed. On tbe 9tb August, 1886, before tbe expiration of tbe 120 days, Mrs. Eeynolds filed a petition to set aside tbe order requiring creditors to file tbeir claims, on tbe ground tbat it was unadvisedly made, and sbe desired to prosecute an action at law wbicb sbe bad instituted on tbe judgment. Tbe cause was submitted on tbis motion, October 19tb, 1886, but tbe record does not show tbat tbe motion was ever acted on. (Tbe transcript, however, does not purport to be complete, but is made up by agreement of selected portions.) On tbe 3Uth December, 1886, tbe register made bis report under tbe order of reference, and reported tbat tbe claim of Mrs. Eeynolds, “there being no objection, was proved and allowed for,” principal and interest, $3,356.18. Objections were filed, however, to tbe register’s report on tbe claim of tbe administrator for services rendered; and a re-reference being ordered as to tbat matter, tbe entire report was confirmed. In March, 1891, tbe death of Mrs. Hannab E. Eeynolds was suggested, and leave was granted to O. M. Eeynolds as her administrator, and also as administrator cle bonis non of Walker Eeynolds, deceased, “to be made a party complainant in tbis cause as such administrator.” On the 28th September, 1891, O. M. .Eeynolds, as administrator, submitted a motion “that tbe order or decree allowing tbe claim of the estate of said Walker Eeynolds against tbe estate of said Edward Gantt, wbicb was made by the- register on, to-wit, tbe 30th December, 1886, and confirmed by tbis court on, to-wit, tbe 5th day of October, 1887, be revived in bis name and favor, as administrator de bonis non of tbe estate of said Walker Eeynolds.” Tbe court overruled and refused tbis motion, and said Eeynolds appealed from tbe order, assigning it as error; and motion being made to dismiss tbe appeal, be asked a mandamus, in tbe alternative, to compel tbe allow-* anee of bis motion.
    Jno. M. Chilton, for appellant and petitioner.
    (1.) When tbe administration and settlement of a decedent’s estate has been removed into tbe Chancery Court, tbat court proceeds according to its own practice. — Rail v. Wilson, 14 Ala. 295 
      Taliaferro v. Broivn, 11 Ala. 702. An order requiring creditors to file and prove their claims may not have been necessary or proper, but it was made without objection, and creditors availed themselves of it. If it was improperly granted, it was a mere irregularity, and not available on collateral attack, especially where the parties in court did not object to it. — -2 Brick. Digest, 158, § 20 ; Cox v. Davis, 17 Ala. 714; Nunn v. Nunn, 66 Ala. 35; Thompson v. Lea, 28 Ala. 453. When creditors are required to come in and prove their claims, as in this case, any creditoi’, or any party to the suit, may contest the validity of the claim of any other creditor. — -2 Dan. Ch. PI. & Pr. 1172; 2 Smith’s Ch. Pr. 548; 1 Story’s Equity, § 548; Owen v. Dickinson, 1 Or. & Ph. 48, 56. Having this right, and not having exercised it, they are concluded by the decree. — 3 Brick. Digest, 580, §75; 70 Ala. 432. Parties who have a right to be heard before the register, and who fail to except to his rulings or action, can not afterwards call his report in question. Nunn v. Nunn, 76 Ala. 35; Waldrop) v. Carnes, 62 Ala. 374; Davenport v. Bartletl & Waring, 9 Ala. 179; Gerald v. Miller, 21 Ala. 433. It would work the greatest injustice to creditors who have filed and proved their claims under the order of the court,' to permit the validity of their claims now to be questioned, since the 120 days have expired, and the statute of limitations may bar an action at law. As matter of fact, the judgment in favor of Walker Beynolds was rendered more than twenty years ago. (2.) The claim was allowed by the register, and his report was confirmed ; and this was a judicial determination of its validity, without a formal decree, or the award of execution. — Colt v. Barnes, 64 Ala. 108; Weaver v. Cooper, 73 Ala. 318 ; Hastie v. Aiken, 67 Ala. 313 ; 3 Brick. Digest, 34, § 12. (3.) The recitals of the record show that Mrs. Hannah Beynolds, as administratrix, was made a party, and it is immaterial that this was improperly done. (4.) This is not an attempt to revive a judgment. The judgment has been filed, under the order of the court, as a claim against the decedent’s estate, and, since the death of the administratrix, there is no one to prosecute it. The general statute gives the right to revive. — Code, § 2603 ; Buie of Chancery Practice, No. 102. (5.) That an appeal lies in this case, see Savannah v. Jessupi, 106 U. S. 563; South Carolina v. Railroad, Co., 8 S. C. 129. If an appeal is not the proper remedy, appellant prays for a mandamus.■ — Moore v. Randolph, 52 Ala. 530; 3 Brick. Digest, 627, § 39.
    
      Bishop & Whitson, and witb them Watts & Son, contra.
    
    (1.) Tbe bill was filed by tbe administrator for tbe purpose of obtaining tbe directions of tbe court as to tbe construction of tbe decedent’s will, to determine wbat part of tbe property devised should be first subjected to tbe payment of debts and expenses. Creditors were not interested in tbe questions involved, and tbey were not made parties. Tbe order requiring creditors to file and prove tbeir claims was proper and necessary to enable tbe court to ascertain bow much of tbe property must be sold or retained by tbe administrator, before making partial distribution among-tbe legatees and devisees; but tbeir claims were not adjudicated. day's Adrrir v. Gurley, 62 Ala. 14; Byrd v. Jones, 84 Ala. 389; BUMps v. Smith, 62 Ala. 575. (2.) Tbe administratrix of Walker Beynolds never was a party to tbe suit, and tbe court could not make ber a party.- — Renfro Bros. v. Goetter, Weil & Co., 78 Ala. 311; Flournoy v. Harper, 81 Ala. 499; Cowles v. Andreios, 39 Ala. 129; Gay, Hardie & Co. v. Brier-field Coal & Iron Co , 94 Ala. 303; Ex parte Printup, 87 Ala. 149. Having proved and filed her claim as a creditor, Mrs. Hannah Beynolds bad a standing in court to object to any other claim against tbe estate, and to that extent only she was recognized as a party. — 54 Ala. 8; 62 Ala. 575. (3.) No decree was rendered in favor of Mrs. Hannah. Beynolds as administratrix; and if a decree bad been rendered", it could not be revived in favor of ber successor in tbe administration ; nor could tbe judgment against tbe decedent be revived, except by action at law. — Code, § 2280; May v. Par-ham, 68 Ala. 256. If tbe allowance of tbe claim of Mrs. Beynolds as administratrix can be regarded as a judgment against Gantt’s estate, it can not be revived against a succeeding administrator. — Bobo v. Gunnels, 92 Ala. 602. (4.) Under tbe pleadings in this case, a judgment could not have been rendered in favor of Mrs. Beynolds as administratrix. Scott v. Ware, 64 Ala. 181.
   COLEMAN, J.-

The original bill in this case was filed by Jno. T. Heflin, administrator of Edward Gantt, deceased. Among other things tbe bill prayed “that tbe Chancery Court would assume jurisdiction and control of tbe settlement of the estate, and by appropriate orders remove tbe same from tbe Probate Court of Talladega county to tbe Chancery Court.” At tbe February term, 1881, it was ordered and decreed, “that this court hereby assume and take jurisdiction of tbe further administration of the estate ol Edward Gantt, deceased, and that tbe jurisdiction and control of tbe Probate Court of Talladega county oyer tbe same be and' is hereby dissolved out of said court, and is invested in tbis court.” Tbe decree tben proceeds to make provision for a transfer of tbe orders and proceedings bad in tbe Probate Court to tbe Chancery Court.

On tbe 21st day of April, 1886, among other things, tbe Chancery Court made and entered a decree, that tbe register give notice to tbe creditors of Edward Gantt,- “requiring them to present their claims against said estate to the register of tbis court, and file tbe same with tbe said register, duly sworn to as directed by law, within 120 days of tbe adjournment of tbis court, or said claims will be forever barred.” In pursuance of tbis order, Hannah Reynolds, as administratrix of tbe estate of Walker Reynolds deceased, filed and probated a claim against tbe estate of Edward Gantt, which amounted to $3,658.18. Yarious other claims were filed and probated not involved in tbe question under consideration.

Under a reference ordered by tbe court to report upon claims, that -of Hannah Reynolds, administratrix, was reported by 'the register as a valid claim. No exceptions were filed to tbis claim, although there were various exceptions filed against tbe report of tbe register upon other claims. In September, 1887, it was ordered and decreed, “that tbe register’s report be, and tbe same is hereby, in all things confirmed.” bio other decree was rendered adjudicating and declaring tbe validity and amount of tbe claims allowed and reported by tbe register, further than tbe order of confirmation which we have quoted.

After filing tbe claim due tbe estate of Walker Reynolds, deceased, and before tbe report of tbe register on' claims was made, Hannah Reynolds, as administratrix, on tbe 19th of October, 1886, appeared, and “moved tbe court to vacate tbe order of tbe court requiring tbe creditors to file their claims in tbis court.” It seems that tbis motion was submitted for decree, but we have been unable to find any disposition of it. It is still pending and undisposed of, so far as appears from tbe record. At tbe March term, 1891, the following order was made: “Came on tbis, tbe 23d day of March, 1881, tbe parties by their solicitors, and tbe death of Hannah E. Reynolds, administratrix of tbe estate of Walker Reynolds, deceased, one of tbe complainants in tbis cause, is suggested, and now comes O. M. Reynolds, administrator of the estate of Walker Reynolds, deceased, and administrator of tbe estate of Hannah E. Reynolds, adminis-tratrix, deceased, and on bis motion leave is granted him to be made a party complainant as sncb administrator in this canse.” On the 28th of September, 1891, O. M. Reynolds, administrator cle bonis non of the estate of Walker Reynolds, deceased, moved the court “that the order or decree allowing the claim of the estate of said Walker Reynolds against the estate of said Edward Gantt for $3,658.18, which was made by the register on, to-wit, the 30th day of December, 1886, and confirmed by this court on, to-wit, the 5th day of October, 1887, be revived in his name and favor as administrator de bonis non of the estate of the said Walker Reynolas.” This motion was overruled by the court. The movant appeals from the decree of the court overruling and denying the motion to revive; and if an appeal is not the appropriate remedy, movant applies in the alternative for a writ of mmdamus, to compel the court to grant the motion.

The record is very voluminous, but we have cited all that is necessary for a proper consideration of the question presented. In his return to a rule nisi, the chancellor states, 1st, that Hannah Reynolds, as administratrix of Walker Reynolds, was never a party to the chancery suit; 2d, O. M. Reynolds, as administrator of Walker Reynolds, is not a proper party complainant in such suit, &c. ; 3d, there is no judgment or decree in favor of Hannah E. Reynolds as ad-ministratrix of Walker Reynolds, &c. There are other causes assigned by the chancellor in his return, why a peremptory mandamus should not issue, but we think it is unnecessary to consider them.

Whether the order of the court was proper or irregular, which required the creditors to file their claims verified, before the register, under the penalty of having them barred, upon a failure to do so, within the time specified, we need not determine. The order was made, and remains in full force, and in obedience to this order Hannah Reynolds, administratrix, filed her claim. It was reported upon by the register as a valid claim, and without exception his report was confirmed by the court.

In addition to this, Hannah Reynolds, as we have seen, moved the court to vacate the order which required the creditors to file their claims against the estate of Edward Gantt, deceased, and this motion, undetermined, is still pending before the court. If the motion is not withdrawn or waived, the party entitled to represent this claim has the right to have the motion adjudicated. Since these orders were made and proceeding had, Hannah Reynolds has died. It would be a denial of justice effected through the orders of tlie court to bold, at tbis stage of tlie case, that tbe claim due Walker Reynolds’ estate should not be represented. It is no answer to say that there is no formal decree upon the confirmation of the register’s report, which reported the correctness and validity of this claim. All necessary and preliminary proof has been taken, and 'the court, in its further proceedings, may yet either set aside the report of the register, and reject the claim, or make a formal decree, adjudicating the validity of the claim, and ordering its payment. The proper representative of the claim should be in court, until finally disposed of by the court. In view of the order of the court made at the March term, 1891, and quoted above, in which it is declared that ‘‘the death of Hannah E. Reynolds, administratrix of the estate of Walker Reynolds, deceased, one of the complainants in this cause, is suggested, and now comes O. M. Reynolds, administrator of Walker Reynolds, deceased, and adminstrator of Hannah E. Reynolds, administratrix, deceased, and on his motion leave is granted him to be made a party complainant as such administrator in this cause,” we do not understand that portion of the chancellor’s return to the rule nisi, in which it is stated that “Hannah E. Reynolds, as administratrix of Walker Reynolds, was never a party to the suit in the Chancery Court,” &c. She was not one of the original parties, but was a proper and necessary party to file and prosecute the claim filed by her as administratrix of the estate of Walker Reynolds, deceased. It would seem that the record does not sustain the returnt of the chancellor in this respect. So long as the interlocutory orders and decrees in regard to the creditors of the estate of Edward Gantt, which have been made by the Chancery Court in the settlement and administration of the estate of Edward Gantt, remain in force, as a matter of right, and indispensable to its proper protection, Hannah E. Reynolds, administratrix of the estate of Walker Reynolds, deceased, was the proper party to represent the claim due that estate; and after tier death, O. M. Reynolds, who had been duly appointed and qualified as administrator de bonis non, should succeed her as the proper party.

We must not be understood as deciding that, when an estate, not insolvent, has been removed from the Probate Court for settlement, upon the bill filed by an administrator, an order by the court requiring creditors to file their claims, verified, before the register within four months, or other specified time, not in accordance with the statutory provisions, or the same will be forever barred, is a proper order, or one authorized by law. Different principles may arise, wben an insolvent estate is before the court for settlement; or the assets of an insolvent debtor are to be distributed among his creditors. The question is not presented at this time for consideration, and may not arise hereafter.

We will not anticipate; but refer to the following authorities, which-treat of the duties and powers of the Chancery Court in the settlement of estates not insolvent: Story’s-Eq. Juris., §§ 543, 547; 1 Pom. Eq., § 156; Lee v. Park, 15 Eng. Ch. Rep. 715 ; Buccle v. Atleo, 2 Vernon, 37 ; Ib. 36; Push v. Higgs, 4 Vesey, 638; Stewart’s Adm’r v. Stewart’s Heirs, 31 Ala. 207; King v. Calhoun, 5 Ala. 523; Clay’s Adm’r v. Gurley, 62 Ala. 14.

■The record shows that the claim of Walker Reynolds, deceased, consisted in a judgment recovered against Edward Gantt in his life-time. Code, § 2280, provides as follows : “When a judgment has been rendered against a decedent before his death, no execution can issue thereon against his personal representative, except in the case provided in section 2897 of the Code; nor can the judgment be revived against him, except by suit on the judgment.”

It is contended by contestee of petitioner’s motion, that under section 2280, supra, and the authorities of May v. Parham, 68 Ala. 256, and Brwown v. Newman, 66 Ala. 271, a judgment can not be revived except in the manner provided in section 2280 of the Code. We do not understand that the purpose of petitioner’s motion is to revive the judgment recovered in the Circuit Court against the estate of Edward Gantt in his life-time. Conceding that the Chancery Court had the authority to require creditors of Edward Gantt to file and probate their claims before the register, and to hear contest of the same, and to judicially allow or reject such claims, the question presented by the motion of petitioner is, whether the filing of the claim by Hannah Reynolds, administratrix, under the order of the court, was the bringing of a suit or action within the meaning of sections 2265 and 2603 &f the Code. Under the former section it is provided, “When any action has been commenced by or against the personal representative of a decedent, the same may be prosecuted by or against any succeeding executor or administrator, who may on motion be made a partyand by section 2603, “No action abates by the death or disability of the plaintiff or defendant, if the cause of action survives or continues; but the same must, on motion, ... be revived in the name of or against the legal representative of the deceased, his successor or party in interest, . . ” &c. We are very clear tbese sections fully cover tbe case made by petitioner, and tbat when Hannab Reynolds, administratrix, filed ber claim against tbe estate of Edward Gantt, deceased, as required by tbe order of tbe Chancery Court, and it was pending before tbat court for allowance or rejection, it was a suit or action, and tbat upon ber death tbe suit might be revived on motion in tbe name of ber successor, as provided in tbe statute.

We need not consider whether an appeal lies from the' decree of tbe court allowing or rejecting a claim filed in pursuance of its own orders, as shown by tbe facts of the case. See Thornton v. Highland Ave. & B. R. Co., 94 Ala. 353, and authorities cited. Under tbe view we take of tbe case, after tbe death of Hannab Reynolds, there was no one in court to represent tbe claim due tbe estate of Walker' Reynolds, deceased, and consequently no one who could prosecute an appeal. Tbe order granting leave to O, M. Reynolds to become a party complainant, without more, did not make him a party in fact. — Ex parte Sayre, 69 Ala. 184. It is évident from the return of tbe chancellor to tbe rule nisi, be does not regard O. M. Reynolds, administrator, a proper party for any purpose. Tbe claim due tbe estate of Walker Reynolds is before tbe court. Since tbe death of Hannab Reynolds, administratrix, it is without a representative, and must abate, unless revived in tbe name of ber successor. Tbe statute provides this may be done by motion. Tbe record shows tbat O. M. Reynolds, petitioner, is ber duly appointed successor. He has moved the court to revive tbe action in bis name as provided in tbe statute. Tbe motion was denied by tbe court. He has no remedy against this error, except that furnished by tbe writ of mandamus. Ex parte Ware, 48 Ala. 223.

A peremptory writ will be awarded commanding him to grant tbe motion of petitioner.

Mandamus granted.  