63 Ala. 477 | Ala. | 1879
It is, in this court, a doctrine which ought to be regarded as familiar, and settled, that if the '
If William and J. E. Irby, at the time of their appointment as administrators of Elizabeth E. Irby, had been indebted to their intestate, under the operation of this principle, such indebtedness would have been extinguished. Without regard to their solvency, it would have been converted into assets — money in their possession, which they would have been under the duty of accounting for, and applying in the due course of administration. — Simmons v. Gutheridge, 13 Vesey, 264; Windrop v. Bass, 12 Mass. 199; Bigelow v. Bigelow, 4 Ohio, 138; Prentice v. Dehon, 10 Allen, 353. In Simmons v. Gutheridge, supra, it was said by the Lord Chancellor : “ A debt due by the executor, to the estate of the testator, is assets, for the same plain reason upon which an executor who is a creditor may retain: that he cannot sue himself.”
An executor does not, in this State, have the right of intermeddling, taking control of, and disposing of the assets, before probate of the .will. It is only in a qualified sense that it may be said his authority is derived from the will. The probate of the will, and the grant of letters testamentary,
Retainer is a remedy by mere operation of law, and is thus explained and defined by Blaekstone : “ If a ¡person, indebted to another, makes his creditor, or debtee, his executor; or, if such a creditor obtains letters of administration to his debtor; in these cases, the law gives him a remedy for his debt, by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree. This is a remedy by the mere act of the law, and grounded upon this reason: that the executor cannot, without an apparent absurdity, commence a suit against himself, as a representative of the deceased, to recover that which is due to him in his own private capacity; but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose.” — 3 Black. 18. To constitute a retainer, and, of consequence, a satisfaction and extinguishment of the debt, there was no act to be done by the executor or administrator — no discretion, or volition, to be exercised by him ; no election whether he would retain or not. The moment assets came to his possession, which, in the due course of administration, were and could be legally applied to the payment of the debt, the law, of its own force, made the application. — Smith v. Watkins, 8 Humph. 341.
At the common law, the executor, or administrator, was regarded as the absolute owner of the personal assets, and an unlimited power of disposition was an incident of the ownership. In Woodward v. Lord Darsy (Plowden, 185 a), the reason of the doctrine, that possession of assets operates an extinguishment of the debt, is said to be, “ because, in judgment of law, he is satisfied before; for, if the executor has as much goods in his hands as his own debt amounts to, the property of those goods is altered, and vested in himself — that is, he has them as his own proper goods, in satisfaction of his debt, and not as executor; so that there is a transmutation of ‘property by operation of law.”
In Wankford v. Wankford, 1 Salk. 305, Holt, C. J. said: “ If the executor of the obligee is made executor to one of
When there are assets in the possession of the personal representative, which are legally applicable to the payment of the debt, the doctrine of the common law seems well settled — the debt due him is paid. No laches in making the application, no indiscretion in parting with the assets, can avoid the result. The law works out the result, and it is not in the discretion of the personal representative to keep alive and continue the debt, or by any subsequent act to revive it. Smith v. Watkins, supra; Chaffin v. House, 4 Dev. (Law) 103; Eeichelberger v. Morris, 9 Watts, 42; Thomas v. Thompson, 2 Johns. 471. It is, however, the possession of assets which may be rightfully retained, that works the extinguishment of the debt. — Hall v. Pratt, 5 Ohio, 82. Eor, as was said in Wankford'v. Wankford, supra, if the personal representative has no assets, “ then he is not the person that ought to pay, though he is the person that is to receive.”
The right of retainer, and its consequences, are not limited to debts due the personal representative individually. It extends to debts due him as trustee. — 2 Williams Ex’rs-, 938. And when the same person is the personal representative of both creditor and debtor, he may retain out of the assets of which he is possessed as the representative of the debtor, to satisfy the debt" due him as .representative of the creditor. — 2 Williams Ex'rs, 943.; 1 Lomax on Ex’rs, 650; Toller on Ex’rs, 295; Thompson v. Cooper, 1 Call, 86; Thomas v. Thompson, 2 Johns. 471; Hosack v. Rogers, 6 Paige, 415; Morrow v. Peyton, 8 Leigh, 54.
Unless the insolvency of the estate of the testator, or intestate, who may be indebted, intervenes, we cannot see that, by our legislation, this doctrine of the common law is repealed. It is subject to modification, because of the changes of the common law. as to the title, rights, and duties of executors or administrators, which our statutes have wrought. While the personal representative has the same title to the personal assets that he had at common law, he has not the
The whole property of a decedent (saving exemptions), real and personal, is charged with the payment of his debts, and must be sold for that purpose. — Code of 1876, § 2429. When the personal assets are insufficient for the payment of debts, the lands must be sold, and the proceeds of sale applied to their payment. It is only through an order of the Court of Probate, made upon the application of the personal representative, that a sale of the lands can be made. The personal representative has the power, and it is his duty, to rent the lands. These statutory provisions have not been construed as altering or preventing the descent of lands, or as intercepting the estate of the devisees. As at common law, the heir takes by descent; or the devisee by the devise, immediately on the death of the ancestor, or devisor. There is no chasm, in which the title is in abeyance.. The personal representative has a statutory power, from which results a corresponding duty, that he may exercise; but he has no estate in the lands; and until the power is exercised, the heir or devisee is in as he was at common law. The lands are assets, only through an exercise of the power. — Anderson v. McGowan, 42 Ala. 280. Yet, a want of diligence in exer
A debt due to him individually, or a debt due to him as trustee, or a debt due to him as the personal representative of another, would not be extinguished, merely because there were lands subject to its payment, which he could, by pursuing and exercising the statutory power, have reduced to money he must have appropriated to its payment. But, if there is negligence in the exercise of the power, rendering him liable to creditors, which would make him answerable for the debt, if a stranger had the authority, and was under the duty of demanding and receiving; can the, presumption of payment and extinguishment be repelled ? If it can, by his negligence, the debt is kept alive and continued, which he has not the power and capacity of doing by positive action; and is effected, if effected at all, only by his mere inaction and dereliction of duty. When the debt is due to him as trustee, or in the capacity of personal representative of the creditor of his testator or intestate, he would be chargeable with it, in favor of creditors, legatees, or next of kin, having the beneficial interest, and to whom he stands in the relation of trustee. The mere negligence of the personal representative, his folly or indiscretion, can not, nor can his immediate direct action, prevent the extinguishment of the debt, when there are assets which, by the fair and just performance of his duty, he could legally appropriate to the payment of the debt. If he paid the debt from his own means, there can be no doubt he would, from the proceeds pf the sale of the land, be allowed to retain for his indemnity. — Livingston v. Newkirk, 3 Johns. Ch. 312. And if he is charged with the debt, because of his negligence, on the settlement of his administration of the estate of the creditor, he must be credited with it on a settlement of his administration of the debtor; and if he is not otherwise in default, for the balance due him on the latter settlement,' the lands can be made liable.
The intestate of the appellant, the creditor of the intestate
There was, then, a period of near five years, during which the administration of both estates, that of the creditor, and that of the debtor, was united in the same person.' In the one capacity, it was his duty to demand and receive; in the other, it was his duty, so far as he had assets legally chargeable, to pay and satisfy. There was no deficiency of assets, and he was chargeable with the debt as money in his capacity of administrator of the estate of the creditor, and entitled to a credit for it when so charged, in his capacity of administrator of the debtor. Unless negligence, delinquency in the discharge of trusts, violation of duty, is presumed, the presumption of payment and extinguishment must be iudulged. For all purposes, the debt is extinguished, and as to all persons. Changes in the administration can not revive it. As we have seen, in obedience to the settled doctrine of this court, if the debt had been due from the administrators individually, it would have been extinguished, eo instanti their appointment and qualification. The only distinction which can be made, when the debt is due from them W a. Represent
This conclusion compels an affirmance of the judgment, without the decision of the other question which has been discussed.