James v. Johnson

44 Ala. 629 | Ala. | 1870

B. E. SAEEOLD, J.

The appellee, in his representative capacity as administrator of the estate of Elizabeth Johnson, sued the appellants, as partners, on a promissory note, made by them in his favor as such administrator. The complaint contained, also, a count for money loaned, and one on an .account stated. Issue was joined on the pleas of non assumpsit, payment and set off. The note was excluded as evidence for not being sufficiently stamped, but the evidence sustained the complaint that the money had been borrowed by the defendants of the plaintiff, and that it was assets of the estate of the intestate. There was no evidence to sustain the pleas, except of a partial payment, which was allowed. Judgment was rendered for the plaintiff. The appellant assigns as error — 1st. A charge of the court that the loan of the money, without an order of the proper court authorizing him to do so, would not prevent the administrator from recovering, and the refusal to give charges asked by the defendants asserting the contrary proposition. There is no evidence in the record touching the question whether the loan was made under an order of court or not.

No law of this State forbids, in terms, an administrator to lend the money of the estate. His simple and ordinary duties are to collect the assets, pay the debts, and make distribution. Until prohibited by statute, he might sell or otherwise dispose of the personal property. A loan of money is not a sale of property, and it is questionable whether an order of the probate court would afford him any protection in the absence of statute authority conferring such jurisdiction. In making a loan the administrator may, or may not, commit a devastavit. If there was no necessity for such a disposition of the money, and it was needed for other legitimate purposes, he would certainly be guilty of waste, and liable to the creditors and distributees of the estate. But 'the law some times places him in positions, as in case of an estate kept together for a term of years, where it becomes his duty to make some profitable disposition of money accumulated. In such cases he is a quasi trustee or guardian, with the rights and liabilities of those fiduciaries.

In Harbin v. Levi, 6 Ala. 399, it was held that when a contract is made with an administrator, with reference to the personal assets of his intestate, he is not compelled to sue as administrator for its breach, although he may do so if he will. As the person contracting with him has dealt with him in his representative character, there is no reason why it should be alleged in the pleadings ; and, if alleged, it will be considered as mere descriptio personcs.— See, also, 1 Chit. PI. p. 20.

It was not neeessai-y for the administrator to allege or prove that he loaned the money under an order of court \ therefore, as there was no evidence on the subject, the charges asked were abstract, and properly refused. The abstract charge of the court is no ground for a reversal of the judgment, because the record shows that the appellants were not thereby prejudiced. — Sheph. Dig., Charge of Court, Abstract, p. 458, § 7.

The judgment is affirmed.