Taylor v. Means

73 Ala. 468 | Ala. | 1882

BRICKELL, C. J.

— The only change of evidence in this cause, since it was before this court at a former term (Means v. Hicks, 65 Ala. 241), is thé introduction of the inventory of the personal property, and accounts of sales, filed in the court of probate by Higginbotham, with the record of a partial or annual settlement of' his administration. It is the duty of an executor or administrator to make and file in the court of probate an inventory of the personal property coming to his hands for administration; and he is prima facie chargeable with the estimated value of the property embraced in it. — Steele v. Knox, 10 Ala. 608; Craig v. McGeehee, 16 Ala. 41. It is also a duty to report and file an account of all sales of property made by him in the course of his administration, and to make annual or partial settlements of Ins administration. As these are official acts, they become evidence against his sureties, when it is proposed to charge them for his defaults. They are also instruments of evidence which may be resorted to, when a surety, claiming to have discharged the common liability, is seeking to recover contribution from his co-surety. These instruments are admissible evidence in this case, and tend strongly to show there was a liability resting on the administrator, for which the sureties on his official bond were answerable. But not connected with evidence of the state of the accounts of the administration of the principal, they do not lead to any safe or satisfactory conclusion as to the exent or amount of the liability. If they were accepted as fixing a liability for the value of the property embraced in the inventory, for the amount of the accounts of sales, and the balance decreed on the partial settlement, they prove too much for the purposes of the appellant. His predecessor in the administration has paid less than the intestate’s just proportion of the common liability, leaving the remainder ito be charged on the co-surety. A surety paying less than his share or proportion of the common debt or liability, is not entitled to recover contribution from his co-surety. — Brandt on Suretyship, § 251. If by the payment of less, than his share, the common debt is entirely satisfied, he would be entitled to contribution. — Stallworth v. Preslar, 34 Ala. 505. Whether such was the effect of the payment made by Hick’s administrator, is one of the disputed facts in the case, the answers averring that it was not made to satisfy the common liability, but by way of compromise to obtain the discharge of his intestate. It may be, if we could look into the record of the decree against ILick’s administrator, it would appear that the common liability was ascertained to be the precise sum which he paid. That record is not, however, evidence against the appellees. The record of a judgment may be used against strangers to prove the fact of the rendition of the judgment; but it can not be used to prove the cause of action involved. — Snodgrass v. Br. Bank Decatur, 25 Ala. 161.

We find no error in the decree of the chancellor, and it must be affirmed.