64 Ala. 438 | Ala. | 1879
George Steele, after duly executing his will, died in the year 1855. The will was probated and established, and M. W. Steele, the executor therein named, qualified and took upon himself the burden and trust of the estate, in November, 1855. The will relieved him from giving bond, and he gave none. The clauses of the will necessary to be construed in this case are as follows: “I wish my estate kept together, till my just debts are paid, if, in the opinion of my executor, it shall be to the interest of the estate to do so ; and I hereby empower my executor to sell any property, real or personal, except such as is hereafter specifically disposed of. I further wish the brick-building business carried on by my executor, till the division of the estate. It is my will that, until the estate is divided, my wife, Eliza Ann, shall retain our present residence, and that she and my daughters, Ellen and Susan, be allowed a liberal and comfortable support out of the estate; and Susan’s education is to be completed from the estate. A liberal allowance must be made my son Angelo, if he wishes to study a profession; or, should he prefer any other honorable avocation, he must likewise be allowed a liberal sum out of the estate, until the division of it. If my son John F. desires any pecuniary assistance, my executor must pay him annually, out of the estate, the sum of six hundred dollars, till the division ; and the same to be charged against him.” The will then makes special provision for a nephew of testator’s wife, and proceeds : “ When my debts
We have probably copied from the will more copiously than will appear to have been necessary; but our object was to show the testator’s general intent. It is shown in the record that the landed interests of the testator were extensive and valuable; and the inventory of the personal estate, with no mention of dues or bills receivable, exceeded seventy thousand dollars. The executor testifies that the debts of the estate w’ere about forty-five thousand dollars. Much the largest part of personal assets of the estate consisted of slaves. When the testator died, two of the heirs were minors; the other five were over twenty-one years old. The executor elected to keep the estate together, and work out the debts, and with it to keep up, not only the brick-building business, but the carpentering, plastering, and painting business, so as to build and finish houses complete. It is also shown that he enlarged the business, by erecting and fitting up a machine-shop propelled by steam, and by hiring other bricklayers, plasterers, and carpenters, in addition to the large number owned by the estate of his testator. Save what is stated in the unsworn answer of M. W. Steele, there is an entire absence of averment and proof of what had been the extent of the brick-building business carried on by George Steele in his life-time. In that answer it is stated, that the
We have stated above that, at the death of Mr. Steele, his estate, as the record tends to show, owed some forty - five thousand dollars. There is attached to the answer of M. W. Steele a statement of solvent dues to the estate, amounting, at Steele’s death, to eleven or twelve thousand dollars. The executor sold some real, and some personal property ; the amount realized not accurately shown. From his building contracts he realized a gross income of seventy or eighty thousand dollars ; but the net income is not shown. He paid part of the debts, and supported the family. His disbursements to the legatees were liberal, if not lavish ; being some sixteen thousand dollars to two of them. Of the debts due from the testator, a considerable sum is claimed as unpaid ; and many thousands are claimed as due from the estate, for borrowed money, merchandise and other alleged supplies furnished, on contracts and promises made by the executor. The record does not enable us to determine how the executor’s accounts with the estate stand. Both the estate, and his administration of it, have, no doubt, been greatly embarrassed and confused by the supervention of the civil war, and the consequent emancipation of the very valuable slave property belonging to the estate.
Very large debts are claimed against the estate, for money lent, merchandise sold, provisions supplied, medicines and medical services furnished, lumber and other building materials, and slaves let to hire ; all on contracts and promises made by the executor, after the estate came to his hands. For these claimants it is contended that, under the power and discretion conferred on his executor by the will of Mr. Steele, these claims are a proper charge against the estate. Indeed, it is contended that, being contracted in furtherance of the expressly conferred powers and objects of the will, they are legitimate expenses of administration, and are a first charge on the assets, paramount to the claims of creditors of the estate proper. This argument denies that they stand in the category of debts of the estate; asserts that they were contracted in the conservation of the property, and that they were part and parcel of the necessary expense of keeping the
In McEldery v. McKenzie, 2 Por. 33, it was said : “ That an executor or administrator can, at his discretion, employ workmen, make contracts, give notes and bonds ad libitum, and bind the estate, and, where there are more than one, bind all in that capacity, is a principle that seems only necessary to be stated, to be rejected. That an executor or administrator may contract for all necessary matters relating to an estate, can not be doubted; but he does so on his personal responsibility.” — See, also, Greening v. Sheffield, Min. 276. In Lyons v. Hays, 30 Ala. 430 — a suit in chancery — it was said : “One rendering services to a trust estate, under the employment of the trustee, has no redress against the trust, except to subject an equitable demand of the trustee to the payment of the debt.” So, in Kirhman v. Benham, 28 Ala. 501 — also a chancery suit— it was said : “The bill of exchange mentioned in the pleadings, although signed as drawer by George M. Savage, styling himself executor of Samuel Savage, is the personal contract of Geo. M. Savage, and does not bind the estate he represented. Kirkman, Abernathy and Hanna "were accommodation acceptors, and, as such, have a right to be reimbursed by Geo. M. Savage, the drawer. This, however, gives them no claim against Samuel Savage5.
In Wade v. Pope, 44 Ala. 694, the court employs the following language ; “Wade charges in his bill that Mrs. Pope, the appellee, was appointed by her husband, at his death, executrix of his will; that the will gave her, as such executrix, power to carry on the farm and manage it, as the husband did in his life-time; that Mrs. Pope qualified as such executrix, and managed said farm under said will; that her testator’s estate consisted of lands, slaves and stock ; that in the year 1856, Mrs. Pope, as executrix, had employed him, said Wade, as overseer on said farm, and had procured him, at her request, to purchase, for the use of said plantation, certain mules at the price of seven hundred and fifty dollars, which mules were used and worked on said plantation, and that they had been retained by executrix as the property of said estate; that appellant had sued Mrs. Pope, not as executrix, but in her individual name, in the Circuit Court of Montgomery county in this State, for his wages, and the price of said mules, in which suit he recovered judgment against her, in April, 1869, for the sum of $1,400 damages, and the further sum of $503.65, costs of suit; on which judgment, execution had been issued and returned ‘no property found.’ This judgment is against Mrs. Pope in her individual capacity, and not
The foregoing is but an affirmance of a principle well nigh universal. In Hill on Trustees, 567 marg., it is said : “The costs, as well as the expenses and charges of trustees, when properly incurred, constitute a charge or lien on the trust estate in their favor; and they will not be compelled to part with the legal estate, until their claim is discharged. But this privilege does not, in general, extend to solicitors, or other persons employed by the trustees; and such persons will be confined to their personal remedy against the trustee, by whom they were employed.” In 2 Williams on Executors, 1509, it is said : “A count alleging that the defendant, as executor, was indebted to the plaintiff for so much money lent by the plaintiff to the defendant as executor, and that the defendant, in consideration thereof, as executor promised to pay, charges him personally; and he can not plead plene administravit, and the only possible judgment is de bonis propriis.” 2 Lomax Executors, 285 marg.; Corner v. Shew, 3 Mees. & Wels. 350; Kirkman v. Boothe, 11 Beav. 273; Hall v. Laver, 1 Hare, 571; Fitzhugh v. Fitzhugh, 11 Graft. 300; Montgomery v. Armstrong, 5 J. J. Marsh. 175; Sims v. Stilwell, 3 How. Miss. 176.
The foregoing is the rule. It sometimes works great hardship ; but the rule is necessary to save and protect trust estates from mismanagement, and, sometimes, faithlessness of trustees. Persons who deal with trustees, and extend them credit, as a rule, acquire no lien on, or right to proceed against, the trust estate in their hands. It is a matter of personal trust and confidence. True, if the trustee is in advance, and the trust fund is indebted to him, a creditor, after suing the trustee to insolvency, may have a remedy to reach and condemn such trust indebtedness. There are no averments or proofs in this record to raise that question. A trustee can not create a charge on a trust fund, enforceable at the suit of a creditor, without express power and authority therefor. The will of Mr. Steele confers on the executor no power to contract debts.
There are cases, in which testators continue their estates, or parts of them, in trade, by express testamentary direction. In such cases, the property or assets thus specially continued in trade, is liable for debts and losses contracted and incurred pursuant to such direction. — Ex parte Richardson, in re Hodson, 3 Madd. Rep. 138; Garland, ex parte, 10 Vesey, 110; Cutbush v. Cutbush, 1 Beav. 184. This principle sheds no light on this case. The creditors, so called, by contract post mortem, have no claim against the estate and property of George Steele. The cases of Cater v. Everleigh, 4 Dess. 19, and James v. Mayrant, Ib. 591, are not in harmony with our decisions, and we decline to follow them.
The claim of Weeden, trustee, consists of two bonds. The larger one, of $3,816, matured January 1st, 1855. The fifteen years, two months, and ten days expired March 11, 1870; after the bill in this case was filed, and the injunction against suits was issued. This is a valid, subsisting claim. — See Sterndale v. Hankinson, supra. The smaller claim of seventy-five dollars was due in 1850, but George Steele made a payment on it, March 8th, 1854.. Computing from this date, the bar of the statute against this claim became complete, May 18th, 1869. The present bill was filed, November 29th, 1869. So this claim is barred, unless the payment made by M, W. Steele, executor, of date J anuary, 1857, and the suit brought on the claim against him, J anuary 10th, 1866, take it out of the operation of the statute. The statute is pleaded by the heirs ; and it is contended for them, that no promise, or payment, made by the executor, will avail to stop the running of the statute, against any effort made to sell real estate for the payment of such claim. We will consider this question in connection with the claim asserted by Samuel H. Moore; the only remaining claim against the estate covered by the assignments of error.
The claim of Samuel H. Moore is as follows: In August, 1855, George Steele, testator, borrowed money from the guardian of said Samuel H. Moore, and gave bill of exchange, himself as drawer, Fearn, Donegan & Co. acceptors, and Bobert Fearn payee and indorser, due at twelve months, to
In Brown v. Lang, 4 Ala. 50 — a case somewhat like the present, except that in that case the surety had paid the debt, and sought to re-establish it against the estate, for his own indemnity — this court treated the taking up of decedent’s note, and the giving of a new one by the personal representative, as a novation, and ruled that thereby the note ceased to be a debt of the estate, and became the personal debt of the administratrix. There had been no change of parties to the note in the several renewals, except that, instead of Lang’s name, Mrs. Lang, his personal representative, signed with the other makers. This court held, that the purchase of the second note by the bank relieved the intestate’s estate from all liability to pay the debt, and that the complainant was not entitled to the relief sought; that his only equity, so far as the intestate’s estate was concerned, was to subject the interest of the administratrix and surviving partner therein, if any, to the payment of the amount paid as their indorser. If Eearn, the indorser of the bill in this case, had paid the debt, and he himself, instead of Moore, was seeking to enforce the claim against Steele’s estate, the two cases would be precisely parallel. In that case, it was ruled, that Lang’s estate was discharged; and hence, that there was no liability on the personal assets. We need not inquire whether that case governs this or not, or whether it is to be followed. — See 1 Brick. Dig. 287, §§ 501-2; Story on Prom. Notes, §§ 104, 404; Elliott v. Sleeper, 2 N. H. 525; Jaffrey v. Cornish, 10 N. H. 505; Buckhalter v. Second National Bank, 42 N. Y. 538; Boyd v. Beck, 29 Ala. 703.
But real estate, though made subject to debts by our statutes, in the absence of testamentary direction, stands on a very different footing. The title is never in abeyance, but on the death of the ancestor descends instantly to the heir or devisee. True, the personal representative may demand and hold possession, and exercise the statutory power of renting, and even selling it for the payment of debts. But it is a mere power — a bare authority — and must be executed as the statute directs. — Chighizola v. Le Baron, 21 Ala. 406; Martin v. Williams, 18 Ala. 190. Until exercised, or steps taken looking to its exercise, the right of the heir is not interrupted. Masterson v. Girard, 10 Ala. 60; Br. Bank v. Fry, 23 Ala. 770; Leavens v. Butler, 8 Por. 380; Anderson v. McGowan, 42 Ala. 280; 1 Brick. Dig, 939, §351. From these premises it results, that the personal representative can do nothing, save as the statutes give him authority, to devest or incumber the title to the realty, which descends to the heir, or devisee. The statutes have given him no power to do!,so. Until he takes possession, sells under a power conferred by the will, or-begins the exercise of some one of the statutory powers, under which he may obtain an order of sale, he has done nothing to which the heir, or devisee, is a party, or by which they can be concluded. He may revive a debt by partial payment or promise; he may submit to a recovery of judgment. These are not the acts of the heir, for, in these respects, he is not their representative. They do not derive their ti,tle through him. All he may do or suffer, as affecting their, landed estates, is res inter alios acta; and when an effort is made by the personal representative, or another, to intei’cept the descent,
In Bond’s Heirs v. Smith, 2 Ala. 660, this court said : “ It is very clear that the legislature did not contemplate a sale of the lands, as a matter of course, on the application of the executor or administrator, but required him to establish the allegations of his petition by proof, if denied by the heir ; and where the heirs are infants, no admission can be made to dispense with this proof. What, then, is the allegation to be proved ? It is, that the personal estate is not sufficient to pay the just debts of the testator, or intestate. To ascertain this, it is obviously necessary to inquire what debts are binding on the testator or intestate, and consequently a charge on the estate ; and it seems to us that any defense, which the ancestor could have made, if the suit had been brought against him, may be made by the heir. The proceeding is, in effect, a suit by the creditors against the heirs, claiming satisfaction out of the estate which has descended to them, for a debt due from the ancestor. It does not, therefore, rest with the administrator to say whether the bar of the statute of limitations shall be interposed or not; he is placed in an antagonist position to the heir, and can not therefore make any admission which shall prejudice him. His power to meddle with the real estate is derived entirely from the statute; it is a special authority, derived from the order of the court, on proof of the allegations of the petition, and confers no power further than is necessary to execute the trust, with which he is clothed for the benefit of the creditors. It is true that, while acting in his appropriate sphere, as the representative of the deceased, he may decline to interpose the bar of the statute to.defeat a just claim; but, when he lavs down his character of representative of the deceased, and becomes a party litigant on behalf of the creditors, against the heirs, it wouid be a strange anomaly if he should be allowed to dictate the defense.”
In Teague v. Corbett, supra, the administrator had suffered judgment to go against him, on a note, which he could have prevented by a plea of the statute of limitations. He paid the judgment, in part, with moneys derived from a sale of intestate’s lands, made under an order of court for the payment of debts. The question was, whether he should be allowed such payment as a credit on his final settlement. This court
In Rogers v. Grannis, 20 Ala. 247, it was decided, that a judgment, rendered against an administrator in chief, did not establish the existence of the debt against the estate in the hands of the administrator de boriis non. In Freeman on Judgments, §163, it is said : “Between the real and personal representatives of a deceased person there is no privity. Hence, a judgment against an administrator or executor is never conclusive against the heirs or devisees, and a judgment for or against an heir or devisee has no effect upon an administrator or executor. A decree against an executor is not binding on the heir, because he is not a party to the suit, can not offer testimony, adduce evidence in opposition to the claim, nor appeal from the judgment. But, as the heirs are not bound by a judgment against the administrator, they are at liberty to dispute any claim so allowed, because the allowance has no higher effect than a judgment. If the allowed claims are made the basis on which to obtain an order to sell the real estate, the heirs are not precluded from contesting them, as freely as though they had acquired none of the properties of a judgment; for, as to the heirs, they are not res judicata.”
In Mooers v. White, 6 Johns. Ch. 353, 387, Chancellor Kent, after an elaborate review of authorities, used the following language : “ If, however, we were to admit, that the defendant, W, was still in time to apply for the sale of the real estate ; yet, I apprehend, that when the persons interested in the real estate appear before the judge, or surrogate, with their
We thus shown that neither a promise or admission by the personal representative, nor a judgment suffered by him, fixes a lien or liability on the real estate, as against the heir or devisee. As stated by Judge Ormond, in Smith v. Bond, supra, in proceedings to sell lands for the payment of debts, the personal representative represents and is the agent of the creditors. He proceeds in their right, and antagonizes the claim and right of the heir or devisee. If it be contended that the will in this case, in express terms, permitted the estate to be kept together, until the debts were paid, and thus prevented the running of the statute, so long as the executor kept the estate together, and kept the debts alive by renewals ; the case of Carrington v. Manning, 13 Ala. 611, is a full answer to this position. The will in that case directed that certain lots be “ sold, and the proceeds applied to the payment of legacies hereafter bequeathed, and the discharge of my (testator’s) debts. I hereby direct and require my executors, hereinafter named, to keep my estate in the county of Marengo, Alabama, together, until all my debts and legacies are paid off and discharged,” &o. Testator further expressed his intention that his estate in Marengo should not be divided until all his debts and the legacies were satisfied. It was held that the will did not create a trust by implication in favor of creditors, which would take a debt due by the deceased out of the statute of limitations, or prevent it from
"We have been referred to Peter v. Beverly, 10 Pet. 532, as showing that the renewals made by M. W. Steele, the executor, continued the debt as a charge against the estate and its realty. That case stands directly opposed to the decision of this court in Brown v. Lang, 4 Ala. 50. This court held the act of renewal to be a novation, and an extinguishment of the claim as a debt of the estate, by the creation of a new personal debt of the administratrix. The Supreme Court of the United States held a similar act to be but an extension of a subsisting debt against the estate. Moreover, in the case of Peter v. Beverly, the report fails to show there was any plea of the statute of limitations. If, as the argument of counsel tends to show, length of time was relied on as a bar to recovery, the court did not consider it. "We prefer to rest our decision of this question on the principle stated above, rather than on the case of Peter v. Beverly, which is silent on the question of the statute of limitations.
But, if there be an extension of time within which to elect, under an equitable construction of our statute, neither the pleadings nor proofs in the present record justify its exercise. There is no averment, and no .attempt at proof, that Mrs. Steele was at any time ignorant of any fact or circumstance, calculated to influence her choice. Neither is it shown, or even possible, that she can, by restoration, place the property of the estate in statu quo. More than twenty years ago, she was in possession of the property devised to her by the will, and it is not shown she has ever been disturbed in its enjoy
We feel it our duty to follow the principle last stated ; and while Mrs. Steele’s claim must be postponed to that of creditors, she has a paramount right over all other devisees and
Reversed and remanded, to be proceeded in according to the principles of this opinion.