69 Ala. 385 | Ala. | 1881
The bill is filed by the appellants, as 'the next of kin of ’William C. Costepliens, deceased, entitled to distribution of his estate, to enforce a lien on certain lands for the payment of promissory notes given for the purchase-money thereof by one Green, payable to said William C., who in his life bargained, sold and conveyed the lands to said Green. The primary question is, whether the appellants are entitled to maintain the suit, or whether it should have been instituted by an administrator of said William O. who is averred to have died ■about thirteen years before the filing of the bill, leaving no -debts.
As a general principle,' the law recognizes an executor or administrator as the only representative of the personal assets of .a decedent. Ilis title to them is exclusive, and whatever may be the lapse of time intervening between the death of the own■er and the grant of letters of administration, or letters testamentary, the title relates to the death, and he may maintain suits to reduce them into possession, whether they were at the time of the death, choses in action, or were subsequently taken and converted.' — 1 Brick. Dig. 932, §§ 261-64. In trust he holds them, first for the payment of debts, aud secondarily, in cases of intestacy, for distribution .to the next of kin, or where they have been bequeathed, for the benefit of legatees. The trusts are charged upon the legal title, and that resides .solely and exclusively in the personal representative, until dis
In the subject-matter of a suit involving the personal assets, -distributees or legatees have an interest differing only in degree from that of creditors. In respect to such assets, however, they can not generally sue any other person than the executor' or administrator, because there is a want of all proper jDrivity between them and persons who may have possession, or may have converted them, or when the assets are in the form of debts, between them and the debtors. They have no title to the assets, and are not appointed by law to demand or receive them; all their interest is secondary, and is capable of conversion into unqualified ownership, only through the process of administration. To support an action at law, or a bill in equity, the plaintiff must have more than an inchoate, qualified inr terest in the subject-matter of suit. Borrowing the appropriate language of Mr. Daniell, “ a bill must not only show that the defendant is liable to the plaintiff’s demands, or has some interest in the subject-matter, but it must also show that there is such a privity between him and the plaintiff, as gives the plaintiff a right to sue him; for it is frequently the case, that a plaintiff has an interest in the subject-matter of the suit, which may be in the hands of a defendant, and yet, for want of a proper privity between them, the plaintiff may not be the person entitled to call upon the defendant to answer his demand.” An illustration or an instance of the rule he mentions, is of an unsatisfied legatee having an interest in the personal estate of his testator, a clear equity to compel its due administration, and yet, is without right to institute suit against the debtors to his testator’s estate for the purpose of‘.compelling them to pay their debts, that they may be applied in satisfaction of his legaey; “ for there is no privity between the legatee and the debtors, who are answerable only to the personal representative of the testator.” — 1 Dan. Ch. Pr. 322. In Gardner v. Gantt, 19 Ala. 666, it was said by Daruan, C. J.: “The distributees or next of kin can maintain.no suit, either at law or in equity, for the mere purpose of distribution, until letters of administration have been duly granted upon the estate of the deceased. This principle is well settled by authority, but even without decided cases, no other rule could obtain, for the reason that the law casts the title to all the personal estate of the decedent upon his personal representative. It is true, that he holds the title as trustee to pay the debts, in the first instance, ‘ and then to make distribution according to the statute amongst those entitled. But until letters of administration have been granted, the legal title can not be brought before the court, ■and, therefore, it can not be bound by a decree, nor can the
There are exceptional cases, in the words of Oh. Kent, “ special cases not exactly defined,” in which this court, venturing beyond established precedents and decisions, has dispensed with the presence of a personal representative, and permitted the next of kin to sue, or distribution to be made to them directly. Many, if not all,,of these cases are collected and referred to in Fretwell v. McLemore, 52 Ala. 124. In each of them there existed some special facts indicating clearly that there was no necessity for an administrator — that if administration was taken, the only duty resting upon an administrator would be to receive with one hand, and with the other make distribution; or without the intervention of an administration, the parties entitled, being adults, had made division of them. In several of the cases the decedents were persons not sui juris, infants, or
All cases in which distribution of personal assets is permitted without an administration, or in which next of kin, or legatees •are permitted in their names to sue directly for their recovery, are exceptional. There is a departure from the general principle, that the legal title to the estate resides exclusively in the ' personal representative, and he only can maintain suits for their recovery. In all such cases there is peril, more or less remote, in obeying the decree rendered in favor of the next of kin. For, if there should be subsequently a personal representative appointed, he would not be bound by the decree — it would not be evidence against him. The parties who had yielded to and obeyed the decree, would be compelled. to double vexation, and possibly a double payment, unless they could protect themselves by proving the affirmative facts which authorized the recovery by the next of kin. — Gardner v. Gantt, supra. While we have no intention to depart from, or modify the former decisions on this question, we are unwilling to extend them to a case like the present, in which the decedent was an adult citizen of the State, and his next of kin seek, in their own name, to recover his personal estate upon the sole averment, that there are no debts against the estate; an averment which is supported only by the presumption sought to be deduced from the fact that a number of years have elapsed since his death, and administration has not been taken. There may be debts existing against him which do not fall within the bar of the statute of limitations, defaults as executor, or as administrator, or in some other fiduciary capacity, or debts payable on a contingency, the contingency not happening on which they are payable until a very recent period. He had the capacity to incur such debts, and it can not be affirmed with certainty that they do not exist. If they should exist, until by the lapse ■ of time there would be a presumption of payment of the debts now preferred as owing the ■decedent, these appellees would be in peril of vexation of
There is yet another feature of the case, which would, in its. present condition, be fatal to the plaintiffs’ right of recovery. The widow of the intestate is entitled to share with them in the distribution of the assets, and she is not made a party in any capacity. The omission to make her a party defendant, which is her true relation, perhaps, in view of the peculiar facts, of the case, is a special cause, of demurrer to the bill.
There are many questions of importance, and not'without difficulty, touching the merits of the controversy, upon which an expression of opinion would be manifestly improper .until they are presented by proper parties. There was no error of injury to the appellants in the decree dismissing the bill, and it must be affirmed.