12 Ala. 105 | Ala. | 1847
Lead Opinion
In Caller’s Ex’rx v. Birney’s Adm’rs, Minor’s Rep. 206, it was decided, that an administrator de bo-nis non could maintain an action on a writing payable to his predecessor in his representative character; that as the money when received would be assets of the intestate’s estate, the right of action followed the administration. To the same effect is King and Clarke v. Griffin, use, &c. 6 Ala. R. 387. So it has been held that bonds and notes taken by executors and administrators for property of the estate they respectively represent, are “ held by them not in their own right, but as assets in the right of others. And hence, upon their death,
In Harbin v. Levi, 6 Ala. Rep. 402, it was said, that the rights and duties of an administrator under the earlier English statutes, are very different from what they are in this State. There he was clothed with a discretionary power over the personal estate of his intestate, and when disposed of by him, -either for money or on credit, the money or notes were absolutely his own. Here, however, the administrator is required by law to dispose of the assets on credit, and it is apprehended that, so long as they continue in a condition to be traced, and are not converted into money, they will pass as assets to any subsequent administrator. This, indeed, is the rule in England when the property has not been changed.” In the opinion, the case of Turner v. Davies, 2 Saund. Rep. 137, is cited; there an administrator had recovered a judgment in trover for the conversion of the property of his intestate, but his letters were repealed before it was satisfied. An audita querela was awarded at the instance of the defendant, and it was held that the removed administrator could not sue an execution on the judgment, as it was clear that the administrator de bonis non was entitled to the money, and if
In Gayle, Adm’r, v. Elliott, 10 Ala. Rep. 264, it was decided, that it was not a good plea by an administrator in an action against him that he had resigned the trust, the plea should also alledge, either that he had administered the assets that came to his hands, or that he had delivered them to his successor: Further, that the 15th section of the act of 1821, “is explicit, and declares that an administrator shall not discharge himself by resigning his trust; it is made his duty to deliver to his successor all the assets and effects which shall not have been duly administered or applied. True, the authority and duties of an administrator cease with the resignation of his trust, and settlement of his accounts, but his conservative powers in respect to the estate still continue, until he absolves himself from responsibility by delivering it to his successor. He has not only the power, under such circumstances, to preserve the estate, but the law makes it his duty; otherwise, he would not be able to do, what not only the statute, but the common law, enjoins on him.”
By the act of 1806, it is enacted, that if it appear, upon examination, that any administrator hath embezzled, wasted or misapplied, all or any part of the decedent’s estate, or shall refuse or neglect to give bond, with security, when required by the orphan’s court, that court may forthwith revoke or repeal the letters of administration, and thereupon commit the administration to such other person having a right thereto as will give the proper bond; who may have actions of trover, detinue, account and on the case, for such goods or chattels as came to the possession of the former administrator, and were withheld, wasted, embezzled, detained or misapplied, by him, and no satisfaction made for the same. [Olay’s Dig. 221, § 4.]
The 19th section of the act of 1821, “ to repeal in part and amend an act, entitled ‘ an act to regulate the proceedings in the courts of law and equity in this State,’ ” enacts, that u where any personal representative or guardian shall be dis
The plea in the case at bar alledges, that the note declared on was given by the maker, and received by the plaintiff in consideration of personal property sold by the latter in his character of administrator, under an order of the orphans’ court: Further, that afterwards, and before the commencement of this action, the plaintiff’s letters of administration and his authority as administrator was revoked and annulled, and still are revoked and annulled; that the plaintiff is not administrator, nor entitled in any other right to maintain the action. We cannot doubt the sufficiency of this plea as a bar to the action, and if the plaintiff had sued in his individual, without noticing his representative character, it would have been equally available. The fact that a note or bond is made payable to an administrator eo nomine, it has been held in several of the cases cited, does not-invest him with a title against his successor in the administration — if it was assets of the estate he represented, upon his resigning or being displaced, it would pass as such, to the administrator de bonis non.
We have seen that the act of 1806 authorises the orphans’ court, if an administrator has embezzled, wasted, or misapplied all or any part of the intestate’s estate, or refuses or neglects to give bond as required by law, to revoke or repeal his letters of administration. The administrator derives his authority from the orphans’ court, and if that is withdrawn or annulled, what powers does he retain as such ? Can hb collect money due the estate ? If he can, it must be because it is his duty to preserve the estate, and deliver it to his successor. I will not say that the right to receive money, or even maintain an action for it before the successor is appointed, is not under any circumstances a conservative power.
While this view carries out the letter of the statutes, it also preserves their spirit, and cannot possibly work harm to any one. There is no danger of loss to the estate from the administration remaining in abeyance; for the statute is explicit in directing the orphans’ court mero motu, upon the letters being revoked or repealed, “to grant letters of administration to such other person or persons, having a right thereto, as will give bond,” &c. Should it not be presumed, if material, that this duty has been performed ? In the absence of any thing of which the reverse may be predicated, must it not be intended that courts and public officers have done what the law requires ? If then, the appointment of an administrator de bonis non be a material inquiry, should not that fact have been negatived by a replication. The view we have taken does not make it necessary to answer these questions.
Dissenting Opinion
Dissenting.
In this case I dissent from the opinion just pronounced. Notwithstanding the removal of the administrator from office, the law casts on him the necessity of preserving the effects of the estate remaining in his hands, and he can only discharge himself,' by handing them over to his successor. If the assets are chattels, it would be his duty to institute proceedings to recover them, if taken from him by a wrongdoer, and his failure to do so, would subject him to a responsibility, as was held by this court, in Gayle, Adm’r, v. Elliott, 10 Ala. 264.]
I am unable to perceive any distinction in principle between that case and the present. If a .removed, or resigned administrator, cannot commence, or maintain a suit, on notes taken by himself upon the sale of the property of the estate, where no successor has been appointed, the consequence will be, that much loss may be sustained by the estate, as the debtor may be about to remove, or the bar of the statute of limitations may be nearly complete, and could only be prevented by the commencement of a suit. This power is entirely conservative in its character, and cannot possibly lead to abuse. Whilst, on the other hand, to permit such an objection as this, to be raised by the debtor, that the removed administrator, in whom the legal title remains until his successor is appointed, cannot sue, without showing that any other person has the right to sue, will certainly be productive of the most mischievous results.
