50 Ala. 326 | Ala. | 1874
The suit is assumpsit by the appellee against the appellant. The complaint claims the principal and interest of a promissorj1, note made by the defendant, payable to John Gill Shorter and Alpheus Baker, executors of the last will and testament of Milton A. Browder, deceased, or bearer, twelve months after the date thereof; “ which said note is now the property of plaintiff,” &c. To this complaint it was objected by demurrer, that the plaintiff’s ownership of the note was not sufficiently averred by a statement of facts showing that the title thereto of Browder’s estate had passed to him. The demurrer was overruled. The averment that the note was the property of the plaintiff, put in issue any manner in which he might lawfully have acquired it as transferee. The objection attacks his right or title as such, and was properly overruled. Browder v. Gaston, 30 Ala. 677; Douglass v. Beasly, 40 Ala. 142.
In Moses v. Clark, 46 Ala. 229 (the same case), we held that he would not be liable again. It is not difficult to fortify that decision. In Woolfork's Adm’r v. Sullivan, 23 Ala. 548, it was held that an administrator had power to compromise, or settle without suit, the choses in action belonging to the estate. This authority is not withdrawn by R. C. §§ 2130, 2131, providing for the compromise of bad or doubtful debts, and directing the manner in which it should be done. R. G. § 2132 shows the extensive character of the compromise intended, going to the receipt of lands, or any other description of property, in exchange for the debts. This legislation referred alone to the entanglements and disasters of the war, inasmuch as it was made inapplicable to debts accruing since the 1st of May, 1865. It cannot be held that an administrator must be charged with 'the credits of the estate in full, unless he shows a judgment against the debtor, and an execution returned partially satisfied, or no property found, or an order from the probate court to compromise. If not, then a qualified right to compromise or settle a chose in action, both before and after suit commenced, must be allowed; otherwise, a most useless accumulation of costs might consume a small estate. The same showing which would obtain an order for a compromise, ought undoubtedly to give him credit for it on settlement.
But, except in the cases to which the sections above referred to apply, the probate court has no authority over the choses in action, unless it be to order a sale of them as property. The property which the court is authorized to order sold, is that which the intestate had; and it does not include his choses in action, except on distribution, when they cannot be equitably divided. R. C. § 2126. The sale may be for cash, or on credit. If the latter, a note must be taken for the purchase money. If this note is again to be regarded as property, subject to another order of sale, there is an interminable circle. It is, therefore, not property subject to such sale, but partakes so much of the nature of money, that it may be disposed of by the administrator as such, with like accountability for the manner in which it is done. It will not be contended that money paid out by the administrator can be reclaimed by the title of the estate to it. Neither ca.n the note, especially when payable to the administrator, for property sold by him under order of court. The property thus sold is so far administered. The reception of the purchase note or money is
The judgment is affirmed.