Judge v. Tyson, 42 Ala. 401

Judge v. Tyson

42 Ala. 401 | Ala. | 1868

BYRD, J.

It is not shown in whose hand-writing the endorsements on the several packages are, nor whether the money contained in them was received by the decedent as judge of the probate court. But whoever may have made the endorsements, and whether the decedent received the money as judge or not, the inventory and evidence did not authorize the court below to charge appellant with the money. The inventory does not show that appellant is liable as administrator for the money ; it is not shown to have been assets of the estate. The clear inference from the inventory is, that the money is not the property of decedent, but that it was held'for and belonged to others. It was property returned in the inventory; and upon proof that the money did not belong to the person designated in the endorsements or to others, the appellant might be chargable with it. But upon this record the administrator de bonis non has shown no facts which authorized the court below to render a decree in his favor against appellant for this money. An administrator de bonis non is only entitled to a decree for the assets of the estate, or their value, if *403disposed of by the administrator in chief, and not appropriated by him as required by law. The former is not entitled to recover of the latter the value of property or the property itself, belonging to others, although in the possession of the decedent at the time of his death, unless the title is shown to have vested in his administrator as such. — Swink’s Adm’r v. Snodgrass, 17 Ala. 656; King et al v. Griffin, use, &c., 6 ib. 388; Smith’s Heirs v. Smith’s Adm’r, 13 ib. 329 ; Williams on Ex’rs, 1407-8.

We infer from the bill of exceptions, that the packages of money came into the administrator’s hands, labeled with the owner’s names, from the recent possession of the deceased. Detinue might have been maintained for those packages in favor of the' respective owners. There was no evidence that the administrator ever appropriated the money as property of the estate, or so treated it. He can not be estopped from asserting that it belonged to the true owner.

As the charge on account of the packages of money received by the administrator, amounting to $1,242 20, is the only matter of controversy in the case, it is useless to open the case as to any other item.

The decree of the court below is reversed and cause remanded for a re-hearing, as to the liability of the administrator for the packages of money above named, to the amount of $1,242 20, and in all other respects the rulings of the court are affirmed. — Jones v. Dyer, 20 Ala. 373; Sankey v. Sankey, 6 Ala. 607.

Judge, J., not sitting.