22 Ala. 692 | Ala. | 1853
The first question presented upon the record, is, as to the correctness of the action of the court he-lo w in overruling the demurrer to the declaration. In this there was no error. The action was brought upon an administration bond, .suggesting a devastavit against the administrator. It avers the execution of the bond, a final settlement of the estate by the administrator, the rendition of a decree against
The demurrer to the third plea was also properly sustained. As we have already observed, when a demand is judicially ascertained against an estate, it becomes the duty of the administrator to pay it, if the assets are sufficient; and if he fails to do so, it is in law a devastavit, for which he and his sureties are chargeable, without the issue of an execution. If sfieh is the law, there can be no necessity for a demand, as he can discharge himself, either by the payment to the party obtaining the judgment, or to the clerk of the court in which the judgment is rendered. Murray v. Charles, 5 Ala. 678; Haynes v. Wheat, 9 Ala. 239.
If there was any error in admitting the approval of the
So also in relation to the appraisement and returns of the sale of the property. We have already decided, that the decree of the Orphans’ Court in favor of a creditor after the decree of insolvency, in the absence of fraud, is conclusive upon the administrator and his sureties, not only as to the debt thus ascertained, but also as to the sufficiency of assets in his hands to meet it, (Watts v. Gayle, 20 Ala. 817;) and the same principle necessarily applies to a decree rendered on a final settlement in favor of a distributee. The amount for which the decree is to be rendered cannot be ascertained, without first determining the assets. The decree itself being thus conclusive evidence of a sufficiency of assets, no other evidence was necessary; and the appraisement and sales of the property belonging to the estate, were simply redundant or superfluous evidence, and as such testimony could not have prejudiced the defendant, he will not be heard to complain of the error, if error it was.
For the same reasons, there was no available error in admitting the evidence showing a demand of the moneys sued for, of the defendant below. No demand was necessary to render him liable.
Neither was there any error in the charge given, or refusal to charge as requested. The decree of the Orphans’ Court bore interest, (Clay’s Dig. 284 § 5;) and, as we have already seen, no demand of the administrator was necessary.
The judgment is affirmed.