Opinion
6 Div. 492.
October 31, 1933. Rehearing Denied December 19, 1933.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Action on promissory note by Mrs. Flonie Nelson against Short Bell Insurance Burial Association, W. H. Short, and W. J. Bell. From a judgment for plaintiff against the individual defendants, defendant W. J. Bell alone appeals.
Affirmed.
Certiorari denied by Supreme Court in Bell v. Nelson, 228 Ala. 621, 154 So. 607.
L. D. Gray, of Jasper, for appellant.
Suit for death of a person cannot be maintained by an heir or distributee of his estate, but only by his personal representative. Code 1923, § 5696; Brown v. Copeland, 206 Ala. 124, 89 So. 274; Newell v. Bushard, 204 Ala. 73, 85 So. 274. A note given to the widow of the deceased for debts owing him or for negligence causing his death is without consideration and cannot be enforced. Authorities, supra.
Davis Curtis, of Jasper, for appellee.
Damages for the death of intestate constitutes no part of his estate. The administrator acts only as a statutory agent in collecting the demand and paying it over to beneficiaries of the estate. Code 1923, § 5696; Kuykendall v. Edmundson, 205 Ala. 265, 87 So. 882; Griswold v. Griswold, 111 Ala. 577, 20 So. 437; Newell v. Bushard, 204 Ala. 73, 85 So. 274; Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann. Cas. 1913B, 225. The administrator having no interest in the damages to be collected, and the same not being liable for any debt of the estate and belonging solely to the beneficiaries of the decedent, a distributee who is of sound mind and full age may compromise and settle her claim and give a valid release for the same. Kennedy v. Davis, supra; Irwin v. Ala. F. I. Co., 215 Ala. 328, 110 So. 566; Newell v. Bushard, supra.
Appellee's husband was killed in an accident for which appellant and others were alleged to be negligently responsible.
They gave to appellee the note here sued on (with other notes) in settlement and satisfaction of all claims, etc., that "the family" of deceased might have, etc.
In this suit by appellee against appellant and others (all the signers of the said note), verdict and judgment went against appellant and one Short, who does not appeal.
Appellant raises but one question, the right of appellee to recover; his claim being that the note in question was given without any consideration therefor. In other words, he argues that since only the deceased's "personal representative" had a right of action, etc., on account of the death of the deceased (Code 1923, § 5696), the release, etc., signed by appellee upon the occasion of his, etc., delivering to her the note in suit, was a nudum pactum, and afforded no consideration for the execution of said note.
But appellant apparently overlooks the fact that appellee was admittedly one (at least) of the "distributees" of her deceased husband's estate; and that "a distributee who is sui juris [as appellee was shown to be] may compromise and settle his [her] claim [as the claim in the instant affair], and give a release valid in equity [or in law]." Irwin v. Ala. Fuel Iron Co., 215 Ala. 328, 110 So. 566, 569. Or, stated otherwise, that "one liable for wrongful death is entitled to a credit for a sum paid in settlement to a distributee * * * against his distributive share of any judgment recovered by the executer [or administrator]." Newell et al. v. Bushard et al., 204 Ala. 73, 85 So. 274. And see Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann. Cas. 1913B, 225.
So, in the situation here shown, the release executed by appellee was at least effective to discharge her claim, in appellant's favor, to the extent of the amount paid her, certainly, to her distributive share in the proceeds of any recovery that might have been had by the "personal representative" under the provisions of Code 1923, § 5696. It was therefore some consideration for the execution of the note sued on; and some is all that the law requires.
And the judgment is affirmed.
Affirmed.