16 Ala. 339 | Ala. | 1849
In Garrow v. Emanuel, 3 Stew. 285, it was decided that a judgment by default against an executor, and ¡return of execution ‘ no property found,’ are conclusive evidence of a devastavit to the amount of the judgment, in a second action by the same plaintiff against him, in his individual character, suggesting a devastavit: Farther, that the executor cannot in' such second action plead the insolvency of his testator’s estate under .statute — his personal liability being fixed by the judgment in the the first suit. This case certainly laid down a most stringent rule in its last proposition, even under the legislation as it existed at the time it was decided. An executor or administrator was then sueable “ after the expiration of six months from the time of proving the will of the testator^ or of granting letters of administration on the estate of the deceased.” This time was prescribed “ to the end that the executor or administrator may have an opportunity to ascertain the • situation of the estate of the testator or intestate.” — Clay’s Dig. 192, § 2. The act of 1815 enacts that all claims against the estates of deceased persons, which are not presented to the executor or administrator within eighteen months after the same shall have accrued, or within eighteen months after letters testamentary <®r of administration, shall be forever barred: Provided, that ■this limitation shall not extend to persons under age, &c. — Cl. Dig. 195, § 17. Under the decision refered to and the sta-4utes we have cited, an administrator might be sued, and in an ordinary case a judgment recovered and enforced against him previous to the expiration of the time limited for the presentation of claims against the estate, though claims might be subsequently presented within the bar, which manifested the insolvency. The only means of preventing irreparable injury to the administrator in such case, would be to allow him to retain a sufficient amount of the assets to indemnify himself, notwithstanding he had, reported the estate insolvent. But where the judgment remains unsatisfied, when the report is made and confirmed, if he cannot plead the insolvency, he must be personally charged, or if the estate is liable to him, the judgment creditor who has most promptly put his claim in suit'will be paid in toto, to the prejudice of others equally meritorious. We will not stop to consider whether the case cited was consonant to our statutes upon the subject, or whether
By the eighth section of the act of 1843, it is enacted that “Whenever any administrator de bonis non shall be appointed, according to the provisions of this act, any former grant of letters testamentary or of administration of the said estate shall be thereby revoked; and all the goods, chattels,moneys, choses in action, and other personal effects, belonging to the said estate, shall be thereby vested in such administrator de bonis non; and he shall be entitled to demand and receive from the former executor or administrator all moneys found due and owing from him to the estate, and all such goods, chattels, choses in action, and other personal effects, and deeds, and other evidences of title to real estate, and may recover the same by any proper proceedings or actions, either in the Orphans’ Court or any court of common law or equity, against such former executor or administrator and his securities.” — Clay’s Dig. 194,§9: This provision, it will be seen upon the decree of insolvency and the appointment of the administrator de bonis non, divests the title of the previous representative of the estate,*: and any further intermeddling with the estate, except for conservative purposes, makes him an executor de son tori. See Hearrin, adm’r, v. Savage, adm’r, at this term. The effect of the decree of insolvency, it has been held, is to, transfer to. the Orphans’ Court the entire jurisdiction of all claims against the estate; with a few exceptions, all debts are placed on* the same footing, though the estate be solvent, and where it is insolvent, the fund for distribution is to be equally divided amongst all the creditors who are not thus privileged. Edwards v. Gibbs, 11 Ala. Rep. 292.
The administrator, being divested of the assets; by due-course of law, cannot be charged with the payment of the judgment;: and the only question is, in what forum shall he seek relief— whether in equity or at law. Even, if secundum, stridi jv-xis■, the administrator could be charged upon the suggestion of a devastavit, there can be no question but equity Avould interpose and reieive' him. Having delivered over the- assets to his. successor as the statute required, Ave think the common la-Av inference from the recovery of the judgmezit and the return of no property found,” is entirely repelled, and the defence may
The judgment is reversed, and the cause remanded.