44 Ala. 690 | Ala. | 1870
Lead Opinion
The facts in this case are almost identically the same as those in Lyon v. Hays' Adm’r, 30 Ala. 430. In this latter case Lyon filed his bill to coerce payment of a debt due him out of the estate of George Hays, deceased, for services rendered by him, at the instance of Robert Leachman, a former administrator cum testamento annexo, in ditching the lands of the estate. The bill alleged, the services rendered were valuable to the estate, and that the complainant had obtained judgment at law against Leachman, on which execution had been issued and returned “ no property found” ; and also that Leachman had made final settlement of his administration, and had been removed from office. This bill was held to be without equity. In delivering the opinion in this case, this court say, “ we concur in the opinion expressed by the chancellor, that the complainant’s bill contains no equity. According to the decision in Jones v. Dawson, 19 Ala. 872, which we are not willing to overrule, 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.”
Here the appellant, 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
The executrix is a trustee, and if the will gives her authority to contract debts for expenses incident to the management of the estate she represents, then she is liable at law for such debts, as such executrix.
The decree of the chancellor dismissing the bill in the court below is affirmed at the costs of the appellant and his securities in this court and the court below.
Rehearing
The rehearing in this case is refused. It is based upon the authority of Coopwood v. Wallace, 12 Ala. 790. This was a special case, and has since been very much doubted. — Jones v. Dawson, 19 Ala. 672. If the executrix had authority under the will to bind the estate, then the estate was bound at law, and there was no. need for a resort to equity, if she had not such authority to bind the estate, then she alone was liable.