Dean v. Portis

11 Ala. 104 | Ala. | 1847

COLLIER, C. J.

In Thrash v. Sumwalt, 5 Ala. Rep. 13, it was decided, that “ an administrator is bound to a creditor of the intestate, in consequence of the assets which come to his hands to be administered; and a distributee has no claim whatever, until the demands of all creditors are satisfied, or legally barred.” He cannot therefore discharge himself, or the assets, from liability to the creditors, by a premature settlement with the distributees, or by a decree of the orphans’ court directing distribution. “ When the creditor’s demand has been presented within the proper period, it is the duty of the administrator to pay it as soon as the assets of the estate are converted into money.” In the case at bar, the administrator made a final settlement of his accounts with the court, from which he received his authority, pending the suit of the creditor, and did not set up the decree thereupon in bar of the action ; but it is now pleaded by his sureties in the administration, as an answer to an action upon the bond for the failure of the administrator to satisfy the judgment rendered in favor of the creditor.

We have seen that the decree rendered upon the distribution, would not have availed the administrator to defeat the creditor, if it had been pleaded, and his surety in a distinct but consequential action cannot derive from it any assistance. The judgment rendered in the primary cause cannot be opened by the pleading and evidence, and if the facts which have since transpired, show that assets came to the administrator’s hands sufficient to satisfy the judgment in question, which have not been duly administered, then the ruling of the circuit court is correct. This conclusion, instead of opposing, is in harmony with the act of 1826, which declares, that “ no security for an executor or administrator shall be chargeable beyond the assets of the testator or intestate, on account of any omission or mistake in pleading of the executor or administrator.” [Clay’s Dig. 228, § 34.]

In Thompson, Judge, &c. v. Searcy and Fearn, 6 Porter’s R. 393, it was decided, that an action can be well maintained upon the administration bond, against the sureties, after the plaintiff’s claim has been ascertained by judgment, upon an allegation that the administrator has wasted more than an equal amount of the goods and chattels of the intestate; and this even before a devastavit is fixed by' judgment, in an action against the administrator, founded upon an allegation that he had wasted the assets, with the view of obtaining satisfaction of a judgment rendered de bonis intestatis.

In the case last cited, it was said, that the surety in the bond can only be charged to the extent of the assets actually wasted; and this was admitted to be the law in Miller v. Gee, 4 Ala. Rep. 359, where it was added that the jury need not ascertain by their verdict the precise extent of the devas-tavit. It was also said, that the law as thus stated, rests upon numerous adjudications, “and does not impose a peculiar hardship on the plaintiff, as he can always throw the burden of proof on the defendant, by showing the amount of assets which came into the hands of the administrator; when this is once established, it rests with the defendant to show they have been lawfully appropriated.” In the present case, it is not pretended that assets to a greater amount than' the plaintiff ’s judgment did not come to the hands of the administrator — the proof recited in the record is full to this point. We have seen that the manner in which the assets were disposed of, furnish no answer to the action of a creditor of the intestate — the evidence establishes a devastavit in law, and of consequence, the sureties of the administrator are chargeable. From this view, it results that the court below laid down the law correctly; the judgment is therefore affirmed.