40 So. 421 | Ala. | 1906
— Action by Lola Daniell, a creditor of the estate of Mills Rogers, deceased, 'against A. M. Baldwin, as surety on the bond of W. D. Whetstone as administrator of said estate. The complaint avers that the estate of said Rogers was solvent, that Whetstone as administrator thereof received ample funds belonging to said estate to satisfy plaintiff’s debt, and that plaintiff had recovered a decree against said Whetstone as such administrator in the sum of $6,078.57, besides the sum of $409.95, costs of suit, and upon which an original and an alias fieri facias had been issued, leviable of the goods and chattels of Mills Rogers, deceased, in the hands of said Whetstone unadministered, and been returned “No property.” The only defense attempted to the action was that Whetstone, the administrator, principal in said bond, had after the.lapse of 18 months from the grant of letters of administration to him, in ignorance and without notice of the debt of Lola Dan-iell, this plaintiff, made a final settlement of his administration in the probate court of the proper county and distributed all the assets of the estate in accordance with the decree rendered on that settlement. The agreed statement of facts upon which the case was heard in the city court supports the averments of the complaint and also the attempted defense just referred to; hut the question of the sufficiency of the attempted defense was duly reserved, and constitutes the only matter of necessary consideration on this appeal. In our opinion the decision of this court on the appeal of Whetstone from the decree recovered against him by this plaintiff — then Lola McQueen — which is the basis of the present suit,
Indeed, our statutory provisions bearing upon the question, so' far from abrogating or even militating against this doctrine, tend to affirmatively support it, and to demonstrate its application to the present case. Section 131 of the code, in terms extending the period for the presentation of the claims of minors, etc., having
But the legislature took cognizance of this possible state of things, and in recognition of the hardship to an administrator which would result from such compulsory settlement and distribution, if he were not pro-' tected from such unknown, hut still subsisting, claim against the estate, expressly provided that the order of distribution thus made “on the application of any legatee or person entitled to distribution” should he a protection to the administrator to the extent of the amount or value of the legacy or share ordered to he paid or distributed.—Code 1896, § 277. And there is -frequent omission of any like provision in respect of an order of distribution made on the initiative of the administrator himself; the legislature proceeding on the assumption that an administrator would not volunteer to make final settlement and full distribution so long as any debt of the estate remained unpaid, and intending, doubtless, to leave him liable for any debt unprovided for at the time of such settlement, whether he knew or had notice of its existence or not. For any settlement and distribution made-by an. administrator of his own motion is a voluntary settlement and distribution within the rule of liability for undiscovered debts declared in Whetstone v. McQueen, supra. It is not only so denominated expressly in, our statutes (Code 1896, § 225, 248), and not only would it he a palpable contradiction in terms to hold otherwise, hut such settlement and distribution in point of legal duty resting on an ádminis-trator to seasonably make final settlement and distribution cannot be said to give a compulsory character to any settlement he makes of his own motion, else there
Both the general duty to make prompt settlements and distributions and the liability of the administrator for interest on funds in his hands, when he has unreasonably delayed settlement and distribution and on that account, exist wholly apart from statute. This duty and this liability were upon administrators at common law—as we express it—in all cases; and yet neither the one nor the other, nor both combined, .was ever supposed to import such compulsion upon him to a speedy settlement as would make any settlement and distribution had on his own initiative so involuntary'as to take it out of the doctrine of the common law, reaffirmed in Whetstone v. McQueen, supra, which holds him liable to undisclosed creditors though he has in good faith made distribution of all assets of the estate; and our statutes not only do not impinge upon this doctrine, but, as we have seen, expressly recognize such settlements and distributions as voluntary. Upon the foregoing considerations, we adhere to the decision of this point in Whetstone v. McQueen, supra, to the effect that Whetstone’s settlement and distribution of the estate of Rogers was
Nothing decided in Walker, Guardian v. Crews, 73 Ala. 412, is opposed to the decision in Whetstone v. McQueen, or to the conclusion we have reached in this case. In the case of (Walker v. Crews) money and dioses in action belonging to Corine Crews, an infant, were‘held by Arthur Crews in trust for her. Arthur Crews died. The trust property came into the hands of his administrator and was distributed to the next of kin after the lapse of 18 months from grant of letters. The claim of Corine Crews was not presented to the administrator, nor did he have any notice of it prior to such distribution, which, it seems, embraced the trust funds and all the assets of the estáte; but,'Corine continuing a minor, her claim was not barred. While yet under age, a guardian was appointed for her, and he filed a bill against the distributees of the estate, alleging the facts of which a synopsis is given above, and praying “(1) an account of how much money or other property, the property of Ella Corine Crews, was in the hands of said Arthur Crews, deceased, at the time of his death’; (2) ‘an account of hoAV much money or other property, belonging to said Ella Corine Crews, went into the hands of said John E. Crews, administrator of Arthur Crews, ' deceased, and Aims by him distributed among the heirs at law of said Arthur CreAvs, deceased’; (3) tin account of how much money or other property, belonging to the estate of said Arthur Crews, deceased, went into the hands of said John E. Crews, administrator of Arthur Crews, deceased, and by him distributed among the heirs at laAV of said Arthur Crews, and in each case the names of all the parties to whom such payments or dis
These dicta, in so far as they tend to a denial of the liability of an administrator in such cases as for a devas-tavit, are unsound. Indeed, the last declaration of Stone, J., quoted above, itself suggests an inquiry, the pursuit of which goes far to demonstrate the unsoundness of the others. We refer to this expression: “But Corine, being an infant, was allowed to present her claim within eighteen months after the removal of her disabilities.” For what purpose was she allowed to present her claim? For payment, of course. But to whom? Not to the distributees, surely, for the statute does not provide for or contemplate such presentation. Then it must be to the administrator. But, if the ad* ministrator is under no duty or liability to pay it, why present it to him at all? Such a presentation would be a vain and useless thing. It is not the habit of lawmakers to provide for the doing of vain and useless things, nor of courts to hold that they have done vain and useless things. To Corine, considered merely as a creditor, the lawmakers had said: “If you present your claim to the administrator within 18 months after you attain your majority, it will be his duty to pay it.” And it was not for the court in that case to break this prom
- The judgment of the city court must be reversed, and a judgment will be here rendered for the plaintiff.
Reversed and remanded.
(On application to modify.) —
Application is made to modify the judgment heretofore rendered, so as to remand the cause, without rendering judgment here for appellant. We recognize the general rule that the court will not render final judgment for an appellant if it will prevent appellee from obtaining a review of rulings against him, but this is not a case for its application. The complaint states a substantial cause of action, and the case was tried on an agreed state of facts. This agreement shows appellee is liable, and that his only asserted defense is without merit. The grounds of demurrer are either concluded by the principles of the opinion of the late Chief Justice, or raise objections of form merely, easily curable by amendment. No matter how long the evil day be postponed, appellee must, on -the admitted facts, ultimately suffer the judgment we have rendered. It would be of no substantial benefit to him, and would but unduly prolong the litigation, to grant his application to modify. .
Application overruled.