Opinion
5 Div. 145.
May 25, 1933. Rehearing Denied June 22, 1933.
Appeal from Circuit Court, Elmore County; F. L. Tate, Judge.
Rushton, Crenshaw Rushton, of Montgomery, for appellant.
The rule of the common law that the legal title to personalty of an intestate vests in his administrator has always been the law in Alabama. Brashear v. Williams, 10 Ala. 630; Beattie v. Abercrombie, 18 Ala. 9; Huddleston v. Huey, 73 Ala. 215; Kelly v. Kelly, 9 Ala. 908, 44 Am. Dec. 469. The interest of distributees or legatees of a decedent is secondary and capable of conversion into unqualified ownership only through the process of administration. Brown v. Copeland, 206 Ala. 124, 89 So. 274; Costephens v. Dean, 69 Ala. 385; Wood v. Cosby, 76 Ala. 557; Woerner on Adm. 656; Franklin v. Williamson, 18 Ala. App. 294, 91 So. 910; Gilchrist v. Gilchrist, 223 Ala. 562, 137 So. 409; Tillery v. Tillery, 155 Ala. 495, 46 So. 582; 45 C. J. 247; Modern Order of Praetorians v. Merriman, 204 Ala. 197, 85 So. 473. It is when there is no administration and also no need of one, by reason of exemption or no debts, that the action can be brought by the heir. Norwich U. F. I. Co. v. Prude, 145 Ala. 297, 40 So. 322, 8 Ann. Cas. 121; Johnson v. Longmire, 39 Ala. 143; Newell v. Bushard, 204 Ala. 73, 85 So. 274; Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann. Cas. 1913B, 225; Mosaic Templars v. Raife, 21 Ala. App. 329, 110 So. 66; Teal v. Chancellor, 117 Ala. 616, 23 So. 651; Hopkins v. Miller, 92 Ala. 513, 8 So. 750; DeBardelaben v. Stoudenmire, 82 Ala. 581, 2 So. 488. Section 8478 of the Code is but an enlargement of section 8277 and, if applicable to a case like this, will be construed in pari materia with sections 7925 and 7948; the latter providing the only method known to our law to avoid administration. Modern Order of Praetorians v. Merriman, supra; Hynes v. Underwood, 191 Ala. 90, 67 So. 994; Evans v. Evans, 213 Ala. 265, 104 So. 515; Bryant v. Perryman, 213 Ala. 561, 105 So. 561; Headen v. Headen, 171 Ala. 521, 54 So. 646. Said section 8478 does not by its terms exempt the money or other benefit from administration, but only from attachment, garnishment, or other process. It in no wise repeals section 5752 and the concluding sentence thereof. Heflin v. Allem, 160 Ala. 241, 48 So. 695; Reiff v. Armour Co., 79 Wn. 48, 139 P. 633, L.R.A. 1915A, 1201. The by-law provides that the personal representative became the payee of the policy. Personal representative meant executor or administrator, and not heir at law. 6 Words and Phrases, First Series, p. 5358; Code 1923, § 5696; Perrydone v. Hester, 215 Ala. 270, 110 So. 403; Newell v. Bushard, supra. Section 5699 was not intended to permit a plaintiff in any case to avoid the statute of limitations. By its terms the suit is subject to any defense against the payee. The administrator being barred, plaintiff was barred, though an infant. Fleming v. Gilmer, 35 Ala. 62; Bryan v. Weems, 29 Ala. 423, 65 Am. Dec. 407; Colburn v. Broughton, 9 Ala. 351; Molton v. Henderson, 62 Ala. 426; Meeks v. Olpherts, 100 U.S. 564, 25 L.Ed. 735; 17 R. C. L. 977; Miles v. Thorne, 38 Cal. 335, 99 Am. Dec. 384, 398; Jenkins v. Jensen, 24 Utah, 108, 66 P. 773, 91 Am. St. Rep. 783.
Holley Milner, of Wetumpka, for appellee.
Under express provision of the statute the proceeds of the certificate were exempt from payment of debts of the mother of plaintiff. The personal representative takes no exempt property of a decedent and cannot sue therefor, the right of action being in the heir. Code 1923, § 8478; Modern Woodmen v. Yanowsky (Tex.Civ.App.) 187 S.W. 728; Phillips v. First Nat. Bank, 208 Ala. 589, 94 So. 801; L. N. R. Co. v. Herb, 125 Tenn. 408, 143 S.W. 1138; Mutual L. I. Co. v. F. M. N. Bank (C. C.) 173 F. 390; Wilson v. Parson's Adm'r, 106 Ky. 385, 50 S.W. 684. The statute of limitations does not run against a minor, and did not begin to run against Mary E. Snider because the action did not accrue in her lifetime; she being expressly prohibited from bringing suit during her lifetime. A cause of action never accrues until the time arrives when suit can be maintained. Code 1923, § 8960; 37 C. J. 807, 810; Hogl v. A. I. Co., 65 W. Va. 437, 64 S.E. 441, 131 Am. St. Rep. 972; Bonslett v. N.Y. L. S. Co. (Mo. Sup.) 190 S.W. 870; Lagudis v. London Assur. Corp., 29 Cal.App. 482, 156 P. 68.
The statute regulating the descent and distribution of personal assets of intestate decedents provides that "the personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner as his real estate, and according to the same rules [as his real estate]; except that the widow, if there are no children, is entitled to all the personal estate, or, if but one child, she is entitled to one-half; if more than one, and not more than four, children, to a child's part; and if more than four children, to one-fifth." (Italics supplied.) Code 1923, § 7374.
And it is well settled, that as to personal assets, not exempt from administration and the payment of debts or charges against the estate, the legal title at the death of the intestate passes to the personal representative; that the interests of the distributees are secondary and are not converted into unqualified ownership except through the process of administration. Costephens v. Dean, 69 Ala. 385; Brown v. Copeland, 206 Ala. 124, 89 So. 274; Tillery v. Tillery, 155 Ala. 495, 46 So. 582; Norwich Union Fire Insurance Co. v. Prude, 145 Ala. 297, 40 So. 322, 8 Ann. Cas. 121; Mayor and Aldermen of Huntsville v. Smith, 137 Ala. 382, 35 So. 120.
But, as to personal property exempt as a matter of law without the necessity of any act on the part of the exemptioner or other person to separate it from property subject to administration, the title passes to and vests in the distributee for whose benefit the exemption is intended. Norwich Union Fire Insurance Co. v. Prude, supra; Phillips v. First Nat. Bank of Bessemer, 208 Ala. 589, 94 So. 801; Jackson v. Wilson, 117 Ala. 432, 23 So. 521; Snead v. Scott, 182 Ala. 97, 62 So. 36; Lasseter v. Deas, 9 Ala. App. 564, 63 So. 735.
Section 8478 of the Code provides, that "no money or other benefit charity or relief, or aid to be paid, provided or rendered, by any such society shall be liable to attachment, garnishment or other process, or be seized, taken, appropriated or applied by any legal or equitable process or operation of law to pay any debt or liability of a member or beneficiary, or any other person who may have a right thereunder, either before or after payment." (Italics supplied.)
There can be no escape from the conclusion that the purpose and intent of this statute was to remove the right of property in the certificate of insurance and its proceeds from seizure under legal process, and subjection by any suit for purposes of administration, or otherwise.
The averments of fact, aside from the pleader's conclusion in count 5, bring the cause of action stated within the influence of section 8478 of the Code, and the demurrers to that count were properly overruled.
Construing subsection (b) of section 115 of the by-laws of the society, made a part of the contract of insurance, making it "payable to the beneficiary or beneficiaries named therein or to their legal representatives," on proof of the death of the insured, in connection with section 8478 of the Code, which must be read into the contract, the term "legal representatives" must be held to refer to the persons who succeed to the benefits by operation of law. 36 C. J. page 979, § 11; Farnam v. Farnam, 53 Conn. 261, 2 A. 325, 5 A. 682; Delaunay v. Burnett, 4 Gilman (9 Ill.) 454; Ewing v. Warner, 47 Minn. 446, 50 N.W. 603. The contract by its terms was matured by the death of the insured and proof thereof furnished to the insurer.
On the agreed case the plaintiff was entitled to recover, and if error intervened in any of the rulings, they were clearly without injury.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.