Johnson v. Hall

Jul 8, 1897

Reporters:: , ,
Before:: Little

Little, J.

The official report states the facts.

1. The record discloses the fact that there was no necessity of administering on the property known as the “home place” for the purpose of paying the debts of the estate or the cost of the administration. Those expenses were borne by the proceeds arising from the sale of the personal property belonging to the estate. This being true, title to this property at the death of the intestate vested in his heirs at law. Civil Code, § 3353. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍This title, however, was subject to the right and duty of the administrator to administer the property for the purpose of distribution. Civil .Code, § 3081. But no such administration should have been had except for the purposes of distribution, it being assumed there were no debts. McCook.v. Pond, 72 Ga. 150; Civil Code, §3358. The heirs at law in the case at bar, being sui juris, could by agreement among themselves dispense with all further administration of said land and make such a distribution of it as seemed proper, to them, and against the exercise of such • right the administrator would not have been heard to object. Being thus enti*690tied, as is shown by the record of the case, all the heirs joined in a deed conveying the land to a purchaser at private sale, and the effect of such conveyance was to vest in him the title to the property. It is true that in so doing the heirs, having executed such deed on the suggestion of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the person who was the administrator of the estate (himself an heir), entrusted the same to him to be delivered to the purchaser on payment to him, for them, of the purchase-money agreed on; ^.and that having received such purchase-money he failed to pay over the same to the plaintiff. But how could the sureties on the bond of the administrator be held liable for such sum? The property was not administered; it was sold by the heirs personally as their property. The obligation of the sureties on the bond of the administrator is, that the principal shall faithfully discharge his duty as such administrator as required by law. This legal duty is, to ascertain and- take into his possession all of the estate of his intestate, to dispose of the same under the orders of the court of ordinary, to pay the indebtedness, and to make returns of his actings and doings as administrator, and to faithfully account for all of said estate, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍pay over the same to the persons entitled. To perform all of which duties ample power over the property is given him by law, but no more than is necessary to properly perform them; and as we have seen, if there be no debts, or if the debts be paid from other sources, he can administer the land only for the purpose of distributing the proceeds among those who are entitled to take; and when he is relieved of this duty of distribution by such persons, who are sui juris, the administrator has no further concern therewith. In this case he never administered the land; the heirs at law as owners individually disposed of it, as they had a right at law to do; and the sureties on the bond were in no way liable to them for such land or the proceeds which arose from the sale made by them.

2. But it is said that the administrator received from the purchaser the share of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the purchase-money to which the plaintiff was entitled and failed to pay it over to him. Admitting this to be true, it was no duty of the administrator to receive *691such money; indeed, as administrator he was not entitled to receive it. No provision of law would or could make it a part of the estate of his decedent. If he did receive it and it was not a part of his duty as administrator to receive it, his sureties could not be made liable, because their undertaking was that he should faithfully discharge his duties as administrator as prescribed by law. Necessarily in presenting the deed to the purchaser and receiving the purchase-money, the administrator did not act in his capacity as such, but as an individual and agent of the plaintiff, to whom he is individually liable. For his acts as an individual his sureties are not bound. When an executor or administrator receives money to the use of a particular individual, the receipt operates as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a specific appropriation of that money, and the executor or administrator must be liable for the money so received in his individual capacity, it having nothing to do with the accounts of the decedent. 7 Am. & Eng. Ency. L. 336, citing Ashby v. Ashby; 7 B. & C. 444, 450; Churchill v. Bertrand, 3 Q. B. 550; Cronan v. Cotting, 99 Mass. 334-336.

The court erred in directing a verdict for the plaintiffs for an amount which included the shares of the purchase-price of the land; and the judgment is therefore

Reversed.

All the Justices concurring.