15 Ala. 202 | Ala. | 1849
The record does not show that the administrator received the proceeds of the rent of the land belonging to the intestate in virtue of his office; but it is clear that the land was rented by him before the act of 1839, authorizing him to rent it, and making the proceeds assets of the estate. Not being assets of the estate, the jurisdiction of the orphans’ court did not attach; and consequently no decree could be rendered against the administrator for such rent.—Smith’s Heirs v. Smith’s Administrator, 13 Ala. Rep. 329. The parties entitled must seek their remedy in another forum.
The only remaining point necessary to be considered is, whether the administrator shall be held liable for the notes due to the estate which came into his hands, but upon which he failed to sue. The notes were shown to have been perfectly good long after the administration of the estate by Bondurant ceased, and no injury would have resulted to the estate had an administrator been appointed as the successor of Bondurant. It was the duty of the county judge to have appointed an administrator de bonis non, after Bondurant’s term of office expired. His failure to do so should not have the effect to charge the plaintiff in error.
It results from what we have said, that, the judgment of the orphans’ court must be reversed, and the cause remanded.