Matthews' Adm'r v. Matthews

56 Ala. 292 | Ala. | 1876

MANNING, J.

Appellee’s counsel has not furnished us with any authority, in support of the action of the judge of the City Court: and it is not in accordance with the general rule in such cases. It has long beeu the established law, that an administrator can not, even after his appointment, create debts, not founded on any transaction or liability of the intestate, for which a suit can be maintained against the administrator as such, and a judgment thereon be rendered, to be levied of the property of the estate. By the common law, such an action can be maintained, only to enforce a liability growing out of some transaction to which the intestate in his life time was a party, or by which he would, if the liability thereupon had matured before his death, have been himself chargeable. An administrator may contract debts for the benefit of the estate in his hands, and pay the debts out of. the estate, and have the amount so paid credited to him in his accounts on settlement; but he would be suable therefor, only individually, and not as administrator, unless in a case in which such suit should be authorized by a statute ; and there is no statute, authorizing such a suit in the case made by the evidence objected to in this cause, even if the administrator in chief had received his appointment and letters as such, before he joined with the other heirs in requesting the service testified about. On the contrary, it has been held, in accordance with English precedents, where, immediately after the death of a person, certain of his friends pawned liis watch to the defendant, for a coffin to bury him in, which the defendant would not sell unless the price was secured, and he who afterwards became administrator, was at the time informed thereof, and did not dissent; yet he might, after he became administrator, sue the pawnee for the watch, and recover it of him. — Jones v. Logan & McMorris, 50 Ala. 493. Appellant, as administrator de bonis non, was not suable by plaintiff, for the services referred to; and the court erred in permitting the evidence thereof to go to the jury, and in refusing to give the charge requested on appellant’s behalf.

2. Objection might have been made to the introduction of said evidence, for another reason also. There is no count, or clause, in the complaint, for work and labor done, or care and attention bestowed upon or about the business or property of intestate, at the request of any body — no allegations to which the evidence related.

The judgment must be reversed, and the cause remanded.