Bailey v. McAlpinBailey v. McAlpin
- Reporters:
- , ,
- Before:
- Cobb
In 1852 an act was passed which provided, that upou the rendition of a judgment in favor of a party- against an executor or administrator upon any liability of the decedent, and a return of nulla bona, suit might at once be instituted upon the bond of the executor or administrator, and judgment recovered against the principal and sureties in the same action ; that if the principal was dead and had no legal representative, or had removed beyond the limits of the State, suit might be brought against the sureties alone on the bondthat if any executor or administrator failed to settle or account with a distributee or legatee, suit might be brought on the bond in the first instance, and judgment recovered against the principal and sureties, without a suit against the administrator or executor in his representative capacity; that if a guardian failed or refused to settle or account with his ward, *621the ward might, upon coming of age, sue the guardian and his sureties without first suing the guardian; and that if an administrator, executor, or guardian had removed or resided beyond the limits of the State, or had placed himself in a situation where he would be subject to attachment, a party at interest might institute suit against the sureties on the bond in the first instance, without having obtained a judgment against the principal in his representative capacity; but that when judgment was obtained against the principal and sureties in such a suit, the property of the sureties should not be levied on until the property of the principal was exhausted, which might be evidenced by a return of nulla bona. Acts 1851 — 2, p. 235. In 1856 an act was passed which recited that it having been the intention of the General Assembly, in the passage of the act of 1852, to give to the creditors the same remedy as was therein given to legatees, distributees, and wards, it was enacted that when such representatives should remove from the State, or place themselves in a position where they would be subject to attachment, it was lawful for any person having demands against them to institute suits against the sureties on their bonds in the first instance, without first obtaining judgment against them in their representative capacity. Acts 1855-6, p. 145. In Johnson v. Koockogey, 23 Ga. 184 (1857), Judge Benning, in dealing with a question not involved •in the present discussion, said that he much questioned the soundness of the ruling in Justices v. Sloan, supra. In Alexander v. Mercer, 7 Ga. 549 (1849), it was held that a bill in equity might be maintained against an administrator and the sureties on his bond, without first obtaining judgment against the principal, where the interposition of a court of equity was necessary to give to a person interested in the “assets of the estate complete relief. See also Woods v. Woods, 7 Ga. 587; Justices v. Hemphill, 9 Ga. 65. The provisions of the acts of 1852 and 1856 are now contained in the Civil Code, §§3501 to 3504 inclusive, and 2536, in practically the identical language in which they were embodied in the Code of 1863. See Code of 1863, § 3295 et seq.
Section 2470 of the Code of 1863 is in the following language: “ The administrator and his sureties shall be held and deemed joint and several obligors, and may be sued as such in the same action; and if the administrator is beyond the jurisdiction of this *622State, or is dead, and his estate unrepresented, or is in such position .that an attachment may be issued against him, the sureties or any one or more of them may be sued. No prior judgment, establishing the liability of the administrator or a devastavit by him, shall be necessary before suit against the sureties on the bond.” This section is certainly in part a codification of the acts of 1820, 1852, and 1856. The question is, is it«a mere codification; or does it introduce new. law in any particular ? Under the act of 1820, as interpreted by this court, a suit against an administrator in his representative capacity was absolutely essential as a condition precedent to a suit against the sureties on the bond. It is to be noted that there is an “ or ” between the words “ administrator ” and “ a devastavit,” and unless the expressions “ liability of the administrator ” and “ devastavit ” are to be used as meaning the same thing, the effect of the act was to dispense with two things, that is, a judgment establishing a liability of the administrator and a judgment establishing a devastavit. In the light of what must have been, at the time of the adoption of the code, the still existing- doubts as to the soundness of the ruling in the Ray case as to the effect of the act of 1820, and the ruling that in equity a suit might be brought against the administrator and his sureties in the first instance, we think the words “ liability of the administrator” are to be construed as meaning liability in his representative capacity, and “ devastavit ” as liability in his individual capacity ; and therefore the effect of the code was to lay down the rule that it was not necessary, as a condition precedent to suing an administrator and the sureties upon his bond, to establish by a prior suit a liability against the principal either in his representative or in his individual capacity. In other words, the effect of the act was to accomplish exactly what was thought by many of the profession and some of the judges was accomplished by the act of 1820, and that is to provide a remedy on an administrator’s bond by one suit, instead of by three, as was necessary before 1820, and by two as was necessary under the interpretation that the act of that year received. This section of the Code of 1863 appears iú the Code of 1868, in section 2468, and the word “or ” has been changed there to “ for, ” and in every subsequent code the word “for” appears. Code of 1873, § 2507; Code of 1882, § 2507; Civil Code, § 3398. There has been no express legisla*623tion altering or changing the provisions of the section of the Code of 1863, above referred to; and it is therefore to be determined whether the adoption of the Code of 1868 by the Constitutional Convention of that year, or the adoption of the present code by the General Assembly, with the word “ for ” substituted for “ or ” had’ the effect to change the substance of the law of that section, if the change in the one word brought about this result. The clause in the present code reads: “ No prior judgment establishing a liability of the administrator for a devastavit by him shall be necessary before a suit against the sureties on the bond ” As it now reads, it is susceptible of the construction that the prior judgment to be dispensed with is that which fixed the liability of the administrator as an individual, and that a prior judgment against him in his representative capacity is still necessary, as it was under the interpretation placed upon the act of 1820.
When the clause as it appears in the Code of 1863 is viewed in the light of the doubt expressed as to the soundness of the decision in the Ray case, which was followed in the Sloan case, which doubt must have been known to and probably entertained by the codifiers, one of whom was the reporter of this court, who was necessarily familiar with the expressions by the judges in their opinions, and, we have no doubt, was thoroughly conversant .with the prevailing opinion of the profession in reference to the matter, the conclusion is almost inevitable that the words of that clause were carefully selected and used advisedly, with the purpose of fixing with certainty and distinctness the rule for the future. If each word in the clause is allowed a meaning, and the language is given its plain interpretation, the use of the disjunctive “or” can lead to but one conclusion, and that is that it was the purpose of the codifiers to carry into the law of the State what so many lawyers and not a few judges thought was the true interpretation of the act of 1820. We have no doubt as to the meaning of this clause as it there stands, and little doubt that it was placed there to have exactly the meaning we have applied to it. Now, is this carefully worded clause in the code, accomplishing a ‘purpose which is so consistent with reason, and which was believed to have been sought after by the framer of the act of 1820, to be entirely done away with, by reason of the fact that the compiler of the Code of 1868 allowed one single letter to find its place in *624that section, which changed a word, and thereby changed the entire meaning of the clause ? There being nothing in the legislation of this State expressly changing or amending the section of the Code of 1863, and no legislation which might be construed as an interpretation of that section, we think the interpolation of the letter “f” in the section of the Code of 1868 is rather to be referred to oversight, accident, or mistake, than to any deliberate purpose on the part of the codifier in the first instance, or the Constitutional Convention in the second instance, to work a radical change in the law of the State. If it was a mere mistake, then the section of the code was not changed by the action of the Constitutional Convention in adopting the Code of 1868. It has been more than once ruled that the Convention in adopting the Code of 1868 did not adopt mistakes made in the compilation of existing law. City of Atlanta v. Gas-Light Co., 71 Ga. 106 (1a), and cit.; Hardeman v. McManus, 82 Ga. 20 (1a). And what has been said in reference to the adoption of the Code of 1868 by the Constitutional Convention is equally applicable to the adoption by the General Assembly of the Code of 1895. If the attention of the codifiers of the Code of 1895 had been called to the interpolation of this one little letter and the result upon the meaning of the section, we have little doubt that they would have restored the section in its original language as it was found in the Code of 1863. We therefore treat the section of the present code as if “for” is to be read “or,” and so construing it, it means that a suit may be brought against an administrator and the sureties on his bond in the first instance, and that it is not necessary to establish a liability against him, either in his representative or individual capacity by judgments in prior suits. That is, since the Code of 1863, that can be done at law in one suit which formerly required three suits, and that can be done at law which formerly could be done only in equity.
In Morgan v. West, 43 Ga. 275, an action was instituted on an administrator’s bond against the principal and sureties, in the name of the ordinary for the use of the plaintiff, who was the guardian of minors, and the intestate of the principal defendant was a former guardian. There was a demurrer to the declaration, on the ground that the suit on the bond could not be maintained until a suit had been first brought and judgment obtained against *625the administrator and a return of nulla bona. Judge Warner said: “ Under the 2468th section of the code [Civil Code, § 3398], a suit may he brought on the- administrator’s bond without first obtaining a judgment against the administrators for a devastavit by them and a return of nulla bona.” This ruling has the effect to construe the code as it now stands as dispensing with the necessity of two suits. The act .of 1820 dispenses with the necessity of a suit against an administrator in his individual capacity, and under this ruling the code dispensed with a suit against him in his representative capacity. Judge Warner in effect construed the section as it now stands as meaning the same thing as the language appearing in the Code of 1863. This decision was by three Judges. In Henderson v. Levy, 52 Ga. 35, Mr. Chief Justice Warner, after quoting the clause above referred to as it appears in the present code, said that whether this referred exclusively to suits on the hond when the administrator is beyond the jurisdiction, or is dead and the estate unrepresented, or is in a position where he would be subject to an attachment, might be admitted to be a doubtful question, but that “ all that can he claimed under this section in any view of it, as to the alteration of the old law, is that no prior judgment establishing the-liability of the administrator for a devastavit shall be necessary before suit against the sureties on the bond.” He reasons that as the section of the code in relation to suits against administrators or executors by distributees or legatees and against guardians by wards and any other person, when such representative is dead and his estate is unrepresented, or he is beyond the jurisdiction of the court, or has placed himself in a position where he would be liable to an attachment, uses the expression, “in the first instance,” this would have the effect to preclude a creditor from suing such representatives and their sureties on their bonds without first establishing a devastavit by a prior suit. So far as what is said by the learned Chief Justice in that case is in conflict with what was ruled in the case of Morgan v. West, the prior decision is controlling; especially because, while Judge McCay concurred in the judgment in the last case, he distinctly expressed his dissatisfaction with the reasoning of the Chief Justice, using the following language: “lam not prepared to say that in such a case the law will require a creditor to do so useless and expensive an act before he can sue the bond. A judg*626meat against the administrator establishing a devastavit is made unnecessary by the express words of the statute; and as in the case of waste of all the assets by the administrator, a suit against him, as such, is only necessary to establish the existence and waste of the assets, I think it unnecessary under our law.”
In McNulty v. Marcus, 57 Ga. 507, it was held that a suit ’ might be maintained against an administrator on his bond, although no prior judgment de bonis testatoris had been obtained when the sureties were not parties to the case. In the opinion Judge Bleckley said that the fact that the sureties were not sued would relieve the case from any conflict with the case of Henderson v. Levy, even if it were conceded that otherwise conflict would exist. In Giles v. Brown, 60 Ga. 658, it was held that suit might be brought against the sureties on an administrator’s bond without establishing a devastavit by a prior judgment against the administrator, where he had removed from the State, and that this was true notwithstanding the administrator had been served while passing through the State and was a party to the suit. In Richardson v. Whitworth, 103 Ga. 741, a decision by only five Justices, it was held that a creditor of an intestate could not maintain an action against the administrator and the sureties on his bond until after a devastavit had been shown by a prior judgment, except where he had removed from the State, or subjected himself to attachment, or was dead and his estate was unrepresented. Cameron v. Justices, 1 Ga. 36, and Justices v. Sloan, 7 Ga 31, are cited to sustain the conclusion there reached; but both of these decisions were before the code. Henderson v. Levy, 52 Ga. 35, was also cited; but, as has been shown, this decision is in conflict with Morgan v. West, and the decision last referred to was not called to the attention of the court. Giles v. Brown is also referred to as having cited Henderson v. Levy approvingly. Reference is also made to Ramsey v. Cole, 84 Ga. 147, where the plaintiff was nonsuited for a failure to introduce a judgment establishing a devastavit. In that case no question was raiséd as to whether it was necessary to establish a devastavit by a prior judgment. It seems to have been conceded that this was necessary, and the sole question was as to whether the evidence was sufficient to show a devastavit. But even if this decision is in conflict with Morgan v. West, it must yield to that decision. Morgan *627v. West was really a suit by a creditor, the real plaintiffs being minors, who were suing the administrator of their former guardian. While the statute expressly authorizes a ward, upon coming of age, to sue his guardian and his sureties without establishing a devastavit by a prior judgment, the right of a minor to sue the administrator of his former guardian is controlled by the same rules which would control other persons having claims against the administrator. In such a case the minors are really creditors of the estate of the former guardian, and their right to sue is governed by the same rules that would govern other creditors. They were neither distributees nor legatees of the estate represented by the administrator, and, by a process of exclusion, they must be classified’ as creditors. See the collection of decisions on the necessity of a prior judgment, in 5 Enc. Dig. Ga. R. 703, 704.
The administrator de bonis non having a right to call his predecessor to account, he may proceed against him in the same way that any other person interested in the estate would be authorize^ to proceed who had a right to call him to account. Distributees, legatees, and creditors at common law had a right to sue a removed administrator for a devastavit, and they still have this right in Georgia, provided the administrator de bonis non does not sue; and the fact that their right to sue is made dependent upon his non-action necessarily indicates that the authority to sue is conferred upon the administrator himself. If the administrator de bonis non refuses or fails to sue, distributees, legatees, and creditors could sue the removed administrator or executor and the sureties upon his bond in the first instarme. And as the administrator de bonis non, in calling his predecessor to an account, is acting in behalf of distributees, legatees, or creditors, as the case may be, he is entitled, as their representative, to the same remedies which they would have if they had sued in their own name. *629Hence tbe administrator de bonis non may bring a suit against his predecessor and ‘the sureties on his bond, in the first instance, without any prior suit establishing liability against “him in his representative capacity, or a devastavit by him in his individual capacity. In reaching this conclusion, we have not overlooked the fa.ct that the act of 1820 .named administrators de bonis non as those who were authorized to bring suit against the principal and sureties on administrators’ bonds. We do not think the fact that administrators de bonis non are not named either in the act of 1852 or of 1856, or in section 3398 of the Civil Code, which embodies portions of those acts, would authorize the conclusion that it was the purpose of the General Assembly, either in the acts or in the code, to deprive such administrators of a right which was expressly given in the act of 1820. Civil Code, § 3398, does not enumerate the persons who may sue, but simply provides when an administrator and his sureties may be sued. The question as to who may sue is to be determined by other provisions of the law’ fixing the right to sue; and the law vests the right to sue an administrator and the sureties on his bond in any one who has an interest’ in the assets of the estate and the, faithful administration thereof by the administrator. The act of 1845 gives to an administrator de bonis non a right to sue, and this right is expressly recognized by the Civil Code, § 3406.
Judgment affirmed.
All the Justices concur.