7 Ala. 304 | Ala. | 1845
All the elementary treatises upon' the rights and duties of executors and administrators treat of their right to retain, in preference to any other creditor, any debt in equal degree. [Wms. on Ex. 685 ; Toller on Ex. 295; Lomax on Ex. 417.] This was unquestionably the law previous to the enactment of the statutes of limitation, and we are not aware there is any decision afterwards made in the English Courts, which limits this right. Indeed, it would be unreasonable that an administrator should be clothed with the power to charge the estate of his intestate with a debt due to another, although within the bar of the statute, and yet be remediless with respect to his own. The only case in which the precise question here made seems to have been agitated in England, is that of Hopkinson v. Leach, Madd. Pr. 583, when Sir John Leach thought the retainer was good, but di
What was said by this Court in the case of Doe v. McLoskey, 1 Ala. Rep. N. S. 741, must be construed with reference to the facts then before the Court, and have no application to the retainer of a debt out of the personal estate.
The case of Rodgers v. Rodgers, 3 Wend. 503, certainly sustains the plaintiff in error, but the only reason given for that decision on this point is, “that the right of retainer should not place the executor in a better situation than other creditors, as to the kind of debts that he may retain.” Therefore, it was then said, “he cannot retain a debt which he could not recover if he stood as creditor simply, and not as executor.” This reasoning certainly is not satisfactory, because if a retainer in a case like this is not permitted, so far from standing better, he should be in a worse condition, because the creditor in such a case may sue, and must recover if the bar is not insisted on by plea. He could also avoid the plea, by showing an express promise by the administrator.
All the other cases cited are those where the personal representative, or a creditor, was pursuing real assets descended to the heir.
Over these the personal representative has no control whatever, and neither action or admission by him, can affect the heir, who, representing his ancestor, is entitled to plead the statute or waive it at his own discretion. Such was the case of Bond v. Smith, 2 Ala. Rep. N. S. 663, and similar in principle are the others.
The case of an insolvent estate has been supposed as one of great hardship, if this rule is declared, but to such the doctrine of retainer has no application. There, the Judge of the County Court, or Commissioners, determine on the validity of the claims, and it is probable the administrator would stand only as any other creditor.
Our conclusion then is, that when the administrator is cited to a settlement by a distributee, he is entitled to show a retainer
The result of this conclusion is, the affirmance of the judgment of the County Court.
[This case was again argued by Campbell for the plaintiff in error, at the January Term, 1845. In addition to the authorities previously cited, he relied on Shewer v. Vanderhost, 1 Russ. & M. 347; De Tastet v. Shaw, 1 B. & A. 664.]
— The additional cases cited upon the re-argument of this cause, do not materially affect the principle on which our former decree was rested. That principle is, that as an administrator is in no case bound to insist upon the bar of the statute of limitations, when sued by another, he may retain for his own debt in the same condition. Lord Brougham, in the decision of Shewer v. Vanderhorst, 1 Russ. & M. 347, does not deny the principle, but takes the distinction, that when an administrator of the estate is drawn into equity, , a creditor, or volunteer may raise the objection, although the personal representative declines to do so. Whatever the authority of the case may be, it would be entirely a different matter to decide, that an admission by the administrator was of no value; or that his right of retainer was gone, because there was no one to admit, or give effect to the moral obligation which rested on the conscience of his intestate. The case of De Tastet v. Shaw, 1 B. & A. 664, proceeds upon the technical ground, that an equitable demand, requiring an account to be taken, is not the • subject of retainer. The observation by Lord Ellenborough, in that case, that justice • cannot be administered without affording the plaintiff, an opportunity of controverting the amount of the debt, doubtless applies to all cases; but there is a marked distinction between the right to controvert the amount of a debt, and that of insisting on a statutory bar, which in all other cases but his own, the administrator is clothed by law with the discretion to waive.
f The common law seems to place an administrator, in every j condition of his intestate’s estate, in the stead of the party
Judgment affirmed.