Trotter v. Brown , 232 Ala. 147 ( 1936 )

We did not affirm in the former opinion that the creditor is compelled to administer on the estate of a deceased fraudulent grantor in order to set aside the conveyance for fraud, and collect the debt out of such property. If the grantor conveyed the legal title by the conveyance, no administrator is necessary, nor need the estate be represented by an administrator ad litem. This was shown in our opinion. But if the legal title did not pass, the estate of deceased must be represented in such a suit. If there is no administrator, the estate may be represented by an administrator ad litem. Section 6057, Code.

If the creditor is the administratrix, she, as such creditor, not as administratrix, may have relief in equity, and when, as here, the estate must be represented, and her interest as creditor is antagonistic to her interest as administratrix, her right to sue as such creditor is not affected, but under section 6057, Code, an administrator ad litem is necessary. And though in her suit a failure to comply with the statute of nonclaim (Code 1923, § 5814, as amended by Laws 1931, p. 839) is ordinarily a defense, it is not so when there is no administration of the estate. Merchants' National Bank v. McGee, 108 Ala. 304, 19 So. 356.

With this explanation, we think there should be no confusion as suggested in the application for rehearing.

Application overruled.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.