45 Ala. 299 | Ala. | 1871
The important issue between the parties to this suit is, whether an executor can maintain a suit at law against one who was his co-executor, but who had been removed before the commencement of the suit, to recover the purchase-money of property bought by the latter executor, at a joint sale made by them, the payment of which became due before his removal.
It is very clear that one executor or administrator is not accountable to his co-administrators for assets or property of the estate which have come into his hands; and also that an executor and his sureties are liable for the price of property of the estate bought by him, which becomes due during his administration, as assets collected. — Chandler et al. v. Shehan, 7 Ala. 251.
The reasons in support of the first proposition cease when the indebted executor is removed. When an executor or administrator dies, resigns, or is removed, and there is another, no other must be appointed. The remaining one becomes the successor, and is entitled to all of the assets unadministered. The decree must be in his favor for the amount found due from his removed co-executor. — Eevised Code, §§ 2040, 2044, 2233. Notwithstanding an executor or administrator is required to settle his accounts within one month from his removal, and any decree against him must be in favor of the continuing representative, the latter is not precluded from any other action for any property remaining in his hands, or for any other cause of action. — Eevised Code, 2238. Any disadvantages to which the removed executor might be subjected by a suit at law could readily be avoided by him by an immediate settlement of his accounts in the probate court. The filing of his accounts for settlement would be a bar to a suit at law subsequently commenced.
The notes made by the appellee, payable to the estate of Thomas A. Thornton, were written contracts, executed by the party sought to be • charged, and are evidence of the
The court erred in sustaining the demurrer to the complaint, and in overruling the demurrer to the defendant’s special plea.
The judgment is reversed, and the cause remanded.
