Turner's Executors v. Wilkins

56 Ala. 173 | Ala. | 1876

MANNING, J.

We are not able to perceive, after an examination of the evidence in this cause, that the chancellor erred in the conclusion he attained, that a devastavit was committed by Turner, the deceased administrator. But appellants insist, that the decree should be here reversed, on two grounds : first, that Mrs. Wilkins, having been co-administrator with Turner, during his administration, and having executed jointly with him a bond for the faithful discharge of their duties as such, is herself liable for the devastavit charged, and can not therefore be a party plaintiff with Smith, in the suit against Turner’s executors; and, secondly, they say that Mrs. Wilkins did not resign the office.of administrator when Turner did, or afterwards, wherefore the administration was not vacant, and there was no jurisdiction in the Probate Court to appoint Smith administrator. Without regard to the manner in which these objections are presented, they are not tenable.

1. In respect to the first: The rule is, that “ a devastavit by one of two or more executors or administrators shall not charge his companion, provided he has not intentionally or otherwise contributed to it ” (2 Williams on Executors, 1649-50); and it is quite clear that Mrs. Wilkins had nothing to do with, and no knowledge of, the acts complained of, as done by her co-administrator, in derogation of the estate. Nor will the fact that she might be made liable for his devastavit, as his surety, by reason of their having made a joint administration bond, defeat a suit in a court of equity, brought by her and her present co-administrator, against Turner’s executors, for his devastavit. It is within the capacity of that court to take cognizance of such a cause, and to make decrees between the parties to this suit, without regard to the ulterior liability of Mrs. Wilkins as such surety.

2. In regard to the second objection: It is admitted that, after the resignation of Turner, in May, the Probate Court granted letters of administration de bonis non of Wilkins’ estate, with his will annexed, in June of the same year, to Mrs. Wilkins and Smith; and that they accepted the appointment, and entered upon the discharge of its duties. The rule, that where the administration is not vacant, the Probate Court can not appoint another person to it, is intended for protection of the authority of the incumbent. When Mrs. Wilkins came forward with Smith, and applied for, and accepted letters of administration de bonis non, to her and him jointly, this, like the acceptance by a person holding any other appointment, of a new commission, modifying or limiting the authority he exercised under the first, operated as a relinquishment or resignation of the former authority, and an acceptance of the latter, which she and her bondsmen would be estopped from denying. A formal resignation by her, and entry of it on the record, might have been more regular and proper. But, in showing her acceptance of a re-appointment, with another person, as co-administrator with her, and that they gave bond, and took upon themselves the duties thus committed to them, the record discloses enough to enable it to be seen that the Probate Court did not act without jurisdiction. — Ragland v. King’s Adm’r, 37 Ala. 80; Cogburn v. McQueen, 46 Ala. 551; see, also, Speight v. Knight, 11 Ala. 461; Gray’s Adm’r v. Cruise, 36 Ala. 559.

Let the decree of the chancellor be affirmed.