Modawell v. Hudson, 57 Ala. 75

57 Ala. 75 | Ala. | 1876

STONE, J.

The Probate Court did not err in the correction nunc pro tunc of the decree rendered in the settlement of the administration in chief. The records and papers in the cause, so far as we can learn, showed the error, and it was clearly the privilege, if not the duty of the Probate Court, to make the correction.—Moore v. Lesueur, 33 Ala. 237. The fact that that subject was taken up, and the correction made while the main trial was in progress, can not, without more, avail to set aside the judgment pronounced. "We think it was permissible in the court to suspend the one trial, that it might consider the motion made to amend.

In the case of Seawell, Adm’r of Buckley v. Buckley, 54 Ala., Horace B. Buckley had died, and J. J. T. Wilson was appointed administrator in chief of his estate. He gave bond as such, with Wm. B. Seawell as one of his sureties. Wilson ceased to be administrator, and Seawell was then appointed administrator de bonis■ non of Buckley’s estate. He brought his predecessor to a settlement of his administration, and a decree was therein rendered in his favor as administrator de bonis non, against Wilson, the administrator in chief. This decree was never in fact paid. When Sea-well, the administrator de bonis non, was brought to a settlement, the question was whether he should be charged in his administration account with the amount of the decree against his predecessor. We then said: “The appellant was the surety, on the bond of Wilson, liable for his defaults. Whatever balance was due from Wilson when legally ascertained, became a debt due from appellant. That balance having been legally ascertained in a judicial proceeding to which appellant was a party, he became as liable for it as he would have been for a promissory note, or bond, executed by him to the intestate. He, alone, had the right to sue for and to receive satisfaction of the decree of the Court of Probate. It was rendered, and properly rendered, in his favor. As surety of Wilson, he became liable to pay it on its rendition. The right to demand and the obligation to pay co-existing in him, as to his eestuis que trust, those for whom he is bound to exercise the right to demand, and for whom he is bound to discharge. the obligation to pay — the debt was extinguished. A presumption of its payment arises, because that was the duty resting on the appellant.” And the court charged the second administration with the amount of the decree in its favor, against the first, as so much money actually received.

The present case is much stronger than the one from which we have copied. In that ease the decree was in favor of Seawell,'administrator de bonis non, against Wilson, administrator in chief. An execution on that decree could have been issued, levied on the property of Wilson, and the money made, if he, Wilson, had property sufficient to meet the demand. Only in the event of a deficiency of Wilson's property to liquidate the claim, would it have become necessary to proceed against Seawell, or his effects, to force the ■collection. Only in that event could the right to demand, and the obligation to pay, have co-existed in one and the same person. In the present case, the incompatibility is encountered at the threshold. The same person fills both trusts — would be both plaintiff and defendant in any proceedings to enforce the collection — and hence not a step could be taken in that direction. If the presumption of payment does not arise in such a case as this, the inevitable result will be that the default of the administration in chief, even though ascertained by a decree of the court, must remain in abeyance, without any means of coercive redress, so long as the administration de bonis non continues; and it would require a second administration de bonis non, confided to a different person, to force such administration in chief to .account. To prevent just such result as this was the rule of presumed payment established. See the authorities collected in Whitworth v. Oliver, 39 Ala. 293.

We think the Probate Court did not err in holding that the amount of the corrected decree, against the administration in chief, was assets in the hands of the administrator de bonis non. The result of such holding is that the estate was not insolvent.

Decree of the Probate Court affirmed.