Long v. Easly

13 Ala. 239 | Ala. | 1848

DARGAN, J.

The first assignment of error is, that the court erred in refusing the plaintiff in error to come to a final settlement of his administration, with the defendant. The plaintiff in error was the administrator in chief of William Long, deceased, and in September, 1842, declared the estate insolvent. In March, 1844, he was removed from office for failing to give new securities, his securities having surrendered him, and Solomon Spence, sheriff of Talladega county, was appointed administrator de bonis non, by virtue of his office. Nothing appears to have been done by him in reference to the estate, and his term of office as sheriff having expired, the defendant in error, by virtue of his office as sheriff, was appointed administrator de bonis non, in the stead of Spence.

The grant of letters of administration to Spence was ordered to attach to his office, and not to his person. When his office as sheriff expired, his authority, and office as administrator ceased, and there was then no administrator of said estate, and the duty again devolved on the court to appoint another. But it is said, that by the act of February, 1843, (Clay’s Dig. 193,) the creditors had the right to nominate the individual, whom the court should appoint administrator de bonis non, and they not having done this, the appointment of the defendant, must be considered as made under the laws existing previous to the act of 1843, and if so, no decree against the plaintiff in error could be rendered in favor of the defendant, on which execution could issue. I do not think it material to inquire, whether the creditors of an estate declared insolvent, previous to the passage of the act of 1843, have the right to nominate to the court the person to be appointed administrator de bonis non, on the removal, or resignation of the administrator in chief. Whether they have that right or not, the jurisdiction of the orphans’ court, to appoint an admistvator de bonis non, is not affected by the existence, or non-existence, of that right in the creditors: and indeed, by the act of 1843, in those cases, where the rights of the creditors to elect, or nominate the individual whom the court shall appoint is indisputable, if they fail to make the selection, or if for any cause whatever, there is no one nominated by the creditors, the court may continue the administrator in chief, or may appoint the general administrator of the county, if there be one; or the sheriff of the county, if there be no such general administrator. When therefore, the administrator in chief is removed, or resigns, and an administrator de bonis non is appointed, the appointment confers upon him the same authority over the .estate, that the law gives to any administrator de bonis non of an insolvent estate ; and he is entitled to all the remedies to reduce the estate to possession, that are given to any administrator de bonis non. Hence it is only necessary to inquire, whether an administrator de bonis non, of an insolvent estate, appointed since the act of 1843, can call on the administrator in chief to account to him for all the assets in his hands, or that have come to his hands, and in the orphans’ court obtain a decree against him, on which execution can issue.

By the act of February, 1843, (Clay’s Dig. 194, <§, 9,) it is enacted, that whenever an administrator de bonis non shall be appointed according to the provisions of this act, any former grant of letters of administration, shall be thereby revoked, and all the goods, chattels, and dioses in action, money, and other personal effects, shall be vested in such administrator ; and he shall be entitled to demand and receive, from the former administrator, or executor, all moneys, found due and owing from him to said estate, and all such goods, chattels, dioses in action, and other personal estate, and deeds, and other evidences of title to real estate; and he may recover the same, by any proper proceeding, or action, either in the orphans’ court, or in any court of common law, or equity, against such former administrator, or executor and his securities. This act gives the administrator de bonis non the right to recover of the administrator in chief, any moneys in his hands belonging to the estate. If it gives the right to recover, could we stop at obtaining a decree, and say, that no execution can issue ? To recover, means to reduce to possession, or the statute would be nugatory so far as it gives the right to recover, in the orphans’ court. But in our opinion, this act authorizes the issuance of any process suited to the nature of the decree that may be rendered; and if a decree be for a sum of money merely, then an execution may issue thereon.

We come therefore to the conclusion, that the appointment of the defeudant in error, is valid; that the grant of letters of administration to him, gives the right to administer the estate, as an insolvent estate, and that the orphans’ court had jurisdiction to render a final decree against the plaintiff in error, in favor of the defendant, on which an execution could issue.

It is also contended, that the heirs and distributees of William Long, should have been notified of the final settlement, in the same manner that absent defendants in chancery are made parties. This is not necessary. We have seen that the defendant in error, by virtue of the act of 1843, may proceed to collect from the administrator in chief, all moneys by him received that were of the estate,'and that he might proceed, either in the orphans’ court, or in any court, of law ,or equity. This, therefore, is a controversy directly between the administrator de bonis non, and the administrator in chief, in which the heirs and distributees have no interest. The estate being declared insolvent, all the effects are vested in the administrator de bonis non, for the purpose of paying the creditors in the manner prescribed by the statute. Then-rights are represented by the administrator de bonis non, and if he, and the administrator in chief, are before the court, either at law or in equity, no other party is necessary, if the object of the suit be merely for the purpose of recovering the assets in the hands of the administrator in chief. But even on the supposition that there may be a contingent interest in the heirs and distributees, if the estate should be more than sufficient to pay the debts, yet as the act of 1843 gives to the administrator de bonis non the right to sue and recover of him, all assets in his hands, it follows, that no other person is a necessary party to the suit between the administrator in chief, who is removed, and the administrator de bonis non ; and as both these were before the court and appeared by attorney, there is no error for want of parties.

The third and last question we shall notice is, that the court should have allowed the plaintiff in error commissions, and other items of credits, and should have adopted his account as returned by him, as there were no objections to it. We cannot re-audit the accounts in this court; if the court below did not allow commissions to the plaintiff in error, or if any item of credit was rejected, that should have been allowed, or if the plaintiff was charged with any amount which he ought not to have been charged with, it was his duty to have made his objections in the court below; to have shown the grounds, or the evidence on which the objection was founded, and to have spread those objections on the record, which might be done by way of a bill of exceptions. But in the absence of all proof, of the reasons why particular items #ere allowed, or disallowed, and of all objections in the court below, there is nothing for this court to review. In the case of Clark v. West, 5 Ala. Rep. 117, this question was settled. It was determined in that case, that on the final settlement of an insolvent estate, if an improper charge is made against the administrator, or if he is held to account for assets not connected with the administration, that the only mode by which he could revise the action of the court, was to raise the question by exceptions, taken to the judgment of the court; and if no exceptions were taken in the court below, this court could not examine the question raised here for the first time. This decision seems to settle the practice, and indeed, there could not be any other rule of practice, as we should not be able here, to see the evidence on which the court below acted. After the best examination we have been able to give this case, it seems to us, there is no error, and the decree of the orphans’ court is affirmed.