Cowan v. Perkins

107 So. 66 | Ala. | 1926

This is a proceeding to revive a decree in the probate court. Margaret B. Perkins was administratrix of the estate of her deceased husband, John R. Perkins. She died many years after her appointment without having made a final settlement of her administration. A. M. Boyte became the administrator of her estate, and John R. Perkins, Jr., administrator de bonis non of the estate of John R. Perkins, Sr. Proceedings were then had to require A. M. Boyte, administrator, to make final settlement of Margaret B. Perkins' administration of her husband's estate pursuant to section 5925, Code 1923. Upon this settlement it was ascertained the estate of Margaret B. Perkins was indebted to the estate of John R. Perkins, and decree was rendered in favor of John R. Perkins, Jr., administrator de bonis non, against A. M. Boyte, as administrator of the estate of Margaret B. Perkins, deceased, for the amount found due.

On appeal the decree was reversed for errors pointed out, and the cause remanded, with directions to enter a decree in conformity with the decision of this court. Boyte v. Perkins,211 Ala. 135, 99 So. 652.

Decree was accordingly rendered in the probate court for the corrected amount, $2,900.10. Later A. M. Boyte died, and Mrs. Jessie B. Cowan succeeded him as administratrix de bonis non of the estate of Margaret B. Perkins.

The present proceeding is by John R. Perkins, Jr., as administrator de bonis non of the estate of John R. Perkins, Sr., to revive said decree against Mrs. Jessie B. Cowan, as administratrix de bonis non of the estate of Margaret B. Perkins, deceased.

The nature and effect of the decree rendered against the administrator in chief under section 5925, Code of 1923, is more fully discussed in our decision in a companion case (6 Div. 564, 107 So. 631) on appeal from a decree in equity, between the same parties, handed down at this time.

It is sufficient here to say the decree in the probate court was a full and final adjudication of the fact and amount of the liability of Margaret B. Perkins for a devastavit in course of her administration. For this purpose it was conclusive on her administrator, A. M. Boyte. It represents a debt of his decedent incurred in her lifetime by reason of her doings in relation to the trust committed to her. As an adjudication of an indebtedness against her estate, it had the same dignity and effect as a judgment at law on any other indebtedness incurred in her lifetime. It became the duty of her administrator, Boyte, to pay it in due course from the assets of her estate as other valid claims.

It is true that, for reasons stated in Boyte v. Perkins, supra, the probate court, pursuant to our directions, ordered that no execution issue; but by the same directions the decree was to stand as a valid allowed claim; that is, a validated, adjudicated *160 claim protecting her administrator in its payment, and imposing the duty so to do if assets of her estate were sufficient to pay her debts, and, if not, take the proper steps by way of insolvency proceedings.

Code 1923, § 6045, reads:

"In all cases where judgment or decree has been rendered against an administrator in chief, of any estate, and such administrator in chief dies, resigns, or is removed before the satisfaction of such judgment or decree, such judgment or decree may be revived in favor of the owners of such judgment or decree, or their personal representative, against the administrator de bonis non of such estate on ten days' notice to such administrator de bonis non; but such liabilities shall only bind the administrator de bonis non to the extent of the assets of the estate which have come into his possession."

Prior to this statute a judgment or decree against an administrator in chief was not binding upon, and furnished no cause of action against, a succeeding administrator de bonis non. Hence it could not be revived against him. Brothers v. Gunnels, 110 Ala. 436, 18 So. 3. This decision in 1895 was followed by the act of November 30, 1896 (Acts 1896-7, p. 23, § 1), now codified in the above section. Its language is inclusive, and applies to a decree rendered against the administrator in chief under sections 5925, 5927, Code 1923. The administrator de bonis non is protected by a limitation of his liability to the assets coming into his hands. The revival of the judgment is, in effect, an adjudication that the decree is still unsatisfied, protects the administrator de bonis non in its payment, and imposes the same duty of payment from assets in his hands as was imposed upon the administrator in chief.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

1 Ante, p. 155.