6 Ala. 36 | Ala. | 1844
The question presented for the consideration of this court, is, whether the plaintiff’s action can be maintained % It is said that an administrator de bonis non is entitled
In the case of the Judge of the Madison county court v. Looney, et al., [2 Stewt. & P. Rep. 70,] an action of debt was brought in the name of the judge, the obligee of the bond, against an executor and his sureties. The breaches assigned were: the failure of the executor to return an inventory and ap-praisement ; an account of sales; to make settlement of the affairs of the estate; or to pay the persons, for whose use the suit was brought, a legacy, which it was the object of the action to recover. A demurrer to the declaration was sustained upon the ground, that the suit upon the bond was not maintainable, until the amount claimed was ascertained by a settlement in the county court or otherwise. [See, also, The Ordinary v. Williams and Parkman, et al, 1 Nott & McC. Rep. 587; The Ordinary v. Powers, 2 Id. 213.] The case of the Judge of the Limestone county court v. French, [3 Stewt. & P. Rep. 263,] was an action against one of the sureties in an executor’s bond, to recover a distributive share of the testator’s estate. The order of the orphans’ court professed to be a final settlement with the executor, ascertained the amount due each distributee, and the number of them, but did not state their names, or render a decree, either joint or several, in their favor. The court was of opinion, that a decree of the orphans’ court, upon the final settement of the accounts of an executor or administrator, would support an action against his sureties in the bond, if the money could not be collected of their principal. But it was held, that, as the settlement was not followed by an order against the executor for the payment of the money, it did not authorize a suit against his sureties. In the Judge of
In the goods of Hall, [1 Hagg. Rep. 139,] an action at common law being brought in the Archbishop’s name, by the administrator de bonis non, against the executor of the original administrator, for the balance of the intestate’s estate, the ecclesiastical court directed the bond to be attended with, on the trial at law, security being given to indemnify the Archbishop against costs. There, the suit was brought against the executor of the administrator alone, without joining the sureties of the latter, and the decision of the court went only to the extent we have stated. Whether the condition of the administration bond, under the 22 & 23 Chas. II. c. 10, s. 1, subjects the obligor to an action where none can be maintained here, we will not stop to inquire. It may, however, be remarked, that the condition defines the duties required with some degree of particularity, and that the case cited, is the only adjudication we can find touching the right of the administrator de bonis non to put the bond in suit against his predecessor, before he has recovered a judgment against him. [1 Lomax’s Bx’rs. 338; 1 Williams’ Ex’rs. 334.]
By a statute passed in 1800, 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 as aforesaid, the said (orphans’) court may forthwith revoke or repeal the letters of administration; and thereupon grant letters of administration to such other person or persons, having a right thereto, as will give
Whether it would not be competent, in the absence of any express legislation upon the subject, for the administrator de bonis non to cause the bond to be sued on against the first administrator alone, and to allege as a breach, a refusal to deliver over the goods that remain in his hands unadministered, we will not, as it is unnecessary, undertake to determine. It may be questionable whether such an action can be maintained, even where letters of administration have been revoked for the causes mentioned in the statute, where the assets have been wasted or converted; but be this as it may, it is perfectly clear upon the authorities cited that the sureties cannot be sued, either jointly or alone, until a judgment or decree has been first obtained against their principal, and an execution issued thereon, prove to be unproductive.
Without undertaking to consider any particular objection to the declaration, we are brought to the conclusion that the action cannot be sustained ; the judgment -of the circuit court is consequently affirmed.