Grace v. Martin

47 Ala. 135 | Ala. | 1872

Lead Opinion

B. F. SAFFOLD, J.

The appellant, as a creditor of the estate of Peter Martin, deceased, recovered a judgment nil dicit against his administrator, upon which an execution de bonis intestatis was returned “no property found.” He then brought this suit upon the administration bond against the appellee as surety.

The court charged the jury, that if the note on which the judgment against the administrator was obtained was not presented to him within eighteen months after the grant of letters of administration, and the heirs of the said estate had, after that time, distributed the property among themselves, without any order or proceeding to that effect from the probate court, and that the administrator had received no assets since that distribution, when the suit was brought, and the judgment obtained against him, the plaintiff could not recover against this defendant.

The substance of this charge, as shown by the bill of exceptions, is, that the plaintiff’s demand was barred by the statute of non-claim, because it was not presented to the administrator within eighteen months from the 31st of December, 1862, when letters of administration were granted to him. It was presented in the latter part of 1865, or in January, 1866.

The statute of non-claim, like the statute of limitations, was suspended in this State from the 11th of January, 1861, to the 21st of September, 1865. This decision accords with the theory of the decision in Bibb & Falkner v. Avery, 45 Ala. 691, with the legislation of the State during the late war, (Acts of 1862,) with ordinance No. 5 of the convention of 1865, and with the decision in Coleman v. Holmes, 44 Ala. 121. This being the case, the above charge was erroneous.

The charge asked by the plaintiff, that the recovery of the judgment against the administrator was a finding of assets in his hands sufficient to pay the judgment binding on his sureties as well as himself, asserted a correct proposition. Amason v. Nash, 24 Ala. 279, and other authorities in our reports which seem to be in opposition, are based upon a statute passed in 1826, and found in Clay’s Digest, 228, § 34, as follows: “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.” The Eevised Code does not contain any such provision, but by •section 2282 an execution de bonis propriis is authorized, whenever one is returned “no property” on a judgment rendered against the administrator, as such, in the circuit court. Section 2278 limits his individual responsibility to the amount of assets which have come into his hands, or which have Been lost, destroyed, wasted, injured, depreciated, or not collected, by want of diligence on his part, or an abuse of his trust. In all of these cases his sureties are hable, and the extent of their liability to a creditor of the estate is ascertained whenever he entitles himself to an execution against the administrator personally. The administrator is enabled to prevent the rendition of a judgment against him by reporting the estate insolvent to the court specially authorized to determine that issue, or by appropriate pleading. By the common law, an inquiry whether the administrator had committed a devastavit or not, either by an action of debt suggesting a devastavit, oí other proceeding, resulted in an execution de bonis propriis, when found against him.

[Note by Eeporter. — At a subsequent day of the term the appellee’s counsel, Messrs. J. M. Martin, and Somerville & McEachin, applied for a re-hearing, and in support thereof filed the following argument:]

This liability of an administrator to an execution against him personally, seems to be the test of some dereliction of duty, as well under the common law as our statutes, which the bond required by our law was intended to provide against.

The judgment is reversed, and the cause remanded:

The evidence shows that J. L. Martin, if ever the administrator of Peter Martin, deceased, was such administrator by the grant of letters of a court of probate not How recognized as a court of probate of the State of Alabama ; and, therefore, said Martin was, if administrator at all, at most but a foreign administrator; and that he and his sureties are, and be hable, only as parties to a foreign administration. In Bibb & Falkner, ex’rs, v. Avery, adm’r, in concluding a similar recital of facts, Peck, C. J., uses the following language: “For these reasons it is, that the judgments and judicial acts of its courts can stand upon no higher grounds than the judgments and judicial acts of foreign courts” (see p. 693); and again, on page 694 the same learned Justice observes, “ They certainly were not the judgments and judicial acts of the courts of one of the United States.” Again, on page 694, supra, we find the following language“ The admitted doctrine, both in England and this country, is, that a foreign executor or administrator can not maintain an action in the courts in either country, in virtue of his foreign letters testamentary or of administration. New letters must be taken out, and new security given, according to the rules of law prescribed in the country or jurisdiction where the suit is brought.” And again, on said page 694 the following language is employed: “Usually such new letters are held to be ancillary merely, but under the peculiar circumstances attending such ’ cases, at present, they should be regarded as original.” Now, we submit, if J. L. Martin, the administrator aforesaid, could not have maintained an action in the -circuit court of Tuskaloosa on the 25th day of March, 1867, the day of the date of the judgment in favor of F. M. Grace, the appellant in this action, against said J. L. Martin, .administrator, <fec., how could a judgment obtained against him, as administrator as aforesaid, be conclusive of assets in the hands of said Martin, as administrator as aforesaid, in an action against L. Y. B. Martin, (appellee in this action,) in a certain suit, (the one which originated this appeal,) in which he was sued as one of the sureties upon what purported to be a bond, and which, if in truth a-bond, was the bond of a foreign administrator? How, indeed, could the action be maintained against appellee, as surety upon said bond? But if that action was properly entertained, we then make respectful inquiry of this court, why it is “new letters must be taken out and new security given, according to the rules of law prescribed in the country or jurisdiction where the suit is brought”? We ask, if security be required because of the probability of assets coming to the hands, thereby, of the administrator, how is it, and why is it, that the foreign administrator’s foreign surety is to be dealt with, and held liable for the acts of his principal in a foreign jurisdiction? If such surety be liable, on action, under our local statutes, why demand other, and home sureties, when the estate is to derive benefit from action on the part of such foreign administrator? Is it not true that “ equality is equity,” and that this benign principle should be operative in all instances where the good of the body politic will not be sacrificed in the interest of the individual?

The principle is settled that an executor or administrator appointed in a. neighboring State (that is to say, a foreign executor or administrator,) cannot be sued as such out of the State conferring his authority. — Campbell, Adm’r, v. Tousey, Ex’r, 7 Cowen, 63.

Such foreign administrator or executor can only be sued as administrator or executor de son tort, and creditors, through such an administrator, cannot bind the estate. — 7 Cowen, 63, and Campbell v. Sheldon, 13 Pickering, 8. Besides, our own statute holds (Rev. Code, § 2292) that “ no person is liable to an action as executor of his own wrong,” except “ to the executor or administrator” for the value of all the property which may have come into his hands under a particular state of facts fully specified.

How, we ask, if the principles above enumerated be lato, could the judgment against J. L. Martin, a foreign administrator, be conclusive against his purported surety, L. V. B. Martin, tbe appellee ?

Again, tbe undertaking of tbe sureties is to answer for tbe acts and doings of tbeir principal witbin tbe jurisdiction only of tbe court granting tbe letters of administration. Tbis fact is evidenced by tbe requirement of Revised Code, § 2293, requiring tbe foreign administrator to record bis foreign letters, duly autbenticated, and to give a new bond, before be is permitted to execute tbe functions of bis office.

With becoming deference to tbe opinion of tbe learned Justice delivering tbe opinion in tbis cause, we venture to maintain tbat tbe judgment against tbe administrator was not conclusive against bis sureties. To sustain tbis view of tbe case, we invite a careful reading, by tbe court, of §§ 2281 (1922) and 2282 (1923), Revised Code. La tbe former, execution may issue against tbe administrator and his sweties upon tbe return of execution (on decree of tbe probate court against tbe administrator) “no property”; but bi tbe latter section, upon a like state of facts, tbe execution can only be issued against tbe administrator, personally. Now, we ask, wby provide for issue against tbe' sureties upon return of tbe execution “no property,” in tbe former, and not so in tbe latter, if it be true tbat tbe judgment of tbe circuit court be conclusive against tbe surety ? Wby render it necessary to sue upon tbe bond, suggesting a devastavit in tbis instance, wben we find tbe bond required in both instances taken and approved by tbe same officer ? Let us suppose tbat a decree bad been rendered against tbe administrator in tbe probate court about tbe time of tbe rendition of tbis judgment in tbe circuit court, and what would have resulted ? In tbe former, execution being returned “ no property” upon tbe decree, “ an execution may issue against sucb executor or administrator and Ms sureties ;” whilst in tbe latter a long and tedious litigation is opened up for tbe judgment creditor in tbe circuit court. It is true tbat tbe statute of 1826, Clay’s Dig, 228, § 34, referred to in tbe opinion of tbe court in tbis case, is not incorporated in his verbis in tbe Eevised Code, jet we maintain that the provisions and benefits of it are fully secured by section 2282 (1923) of said Code.

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Rehearing

B. E. SAEEOLD, J.

Application for rehearing overruled.