George S. Wilson and James G. Wilson, Appellants, vs. Montgomery L. Broward, Administrator of Estate of Charles Broward, Deceased, Appellee, 15 Fla. 587

Van VALKENBURGH, J., delivered the opinion of the court-■ - The only question presented for consideration 'by-the'-record in this -cáse is, can a party -prosecute to' judgment an “ unaiithenticated' or admitted elaim?* -against -aiñ intestate’s estate^ after a suggestion-'of fhé- íúso'lveney 'óf-s,uch-estate has been- filed by the administrator,' in- pursuance of the statute'approved- JUnitary'-8^ 1853.- ; <’••!. ■■■, - -.tro '.t/ff '■ The'rúle’fe-’weíl' settled with- heápéet to -personal claims founded-upon any contract, covenant or-' debt, -thatthe right of-' 'action,Uponwlneh ¡l a ¡testator: er-intestate 'might* diave been sued ’.in.Rig- life-time; survives his death; and. that'" the '.sáme.eán' he,enforced against, his executor or administrator.

In.1828, the Legislature of this State passed

an act by which it. was; provided:that “ no executor- or. administrator shall ¡be compelled to.pay the debts of the .testator, or. intestate; -until after "the .expiration' of six months from the, taking out letters: testamentary or.-letters of, administration;: and;.,if. any person 'shall b'ring any action against any executor, or. .administrator .within the aforesaid six months, the plaintiff ¡although'.he. may obtain.judgment for the amount of his der. mand, shall not recover any; costs in his suit, nor have, exe•cutiop on his judgment until after the expiration of the said, -six months.’’ .(Thomp, Dig. 205.) The-right of the party by this

section to bring, the action against the executor or -administrator is in no way affected; it is as perfect as before ■.the'passage of .the -act, but if it 'is.-brought within the six ¡months from the taking out the letters testamentary or of administration-, no costs follow the judgment if ,in favor of the plaintiff and, the.issue, pf'the execution is stayed until the expiration of such six months. In 1858, the Legislature passed

an act entitled “

an act to provide for the payment pro rata of the debts of insolvent estates,” the third

section "of which reads as follows: •“ Be it further enacted, That in all case's where the claims against said estate are denied or contested by such executor or administrator,'it may be’ lawful fór suéb elaiiüánt to próse■cute a suit at law, or in equity, for the establishment of the -same as .if this act . had not been passed ; Provided, That upon the rendition of a judgment or deeree for said claims, the-same shall be filed ,with the said Judge of Probate-for jpro rata, payment, as other claims are .required-to he filed-,; but 'unauthenticated or admitted claims against said estate ¡shall not be otherwise sued :or enforced than ag provided for in, this act.’’ Underbills statute, approveffJanuary 8,, 1853, the defendant, pleads the insolvency of the estate of his ,in..festate,-a'n.d alleges that, he has filed a written,suggestion of such insolvency in the office of the Judge of Probate of Duval county, that being the county in which letters of administration were granted. , .The object of. thie Legislature, in, this enactment, (as it appears not only from the enacting clause but also from the reading of the whole act itself) seems to have been to secure to the creditors of an insolvent estate a w'ro rata distribution thereof, and to prevent judgment or otherwise preferred creditors, through actions. brought subsequent to the death of the intestate, from enforcing or . receiving more than their pro rata share, ’and while it affirmatively authorizes the owners of “dénied or contested” claims' to “prosecute a suit at law or in equity for the establishment of the-same,” it nowhere, by direct negative ■ terms or language, prohibits actions upoh those which were not; contested.

" The right of a party to prosecute his claim, when due,- to judgment is secured by law,, and to,,deprive him of this, right the statute should be clear and in its meaning' unmistakable. • The language of the' proviso contained in thé

section of thé statute abové referred to must be construed to mean that unauthenticated or admitted■ claims against said estate" may be sued and. enforced -in same manner as provided for those claims that aré denied or contested. “ That upon the reijditidn' óf a judgment or decree for (said clmms; thé''same shall bp filed with said’Judge of(Probate for pfo 'rdta payment.”. The, common law and statutory right of a party to prosecute his1 claim to judgment, whether' the same was admitted or contested, was not intended to be changed by this’ aet.,» , . ■ ’ .. ...... ■■ . ■ '. ■ -. . ,, ,.; ., .. " ', , The. judgment, of the Circuit Court must; be reversed. ,.