Walls & Wire v. Grigsby, 42 Ala. 473

42 Ala. 473 | Ala. | 1868

A. J. WALKER, C. J.

It was unquestionably the duty of the administrator, Grigsby, to take two sufficient sureties on the notes given for the crop of cotton sold by him, on a credit, to W. P. Tanner & Co., and he is responsible for the loss resulting from his failure to do so, unless he is exempted from the operation of a general principle for some reason apparent in the case. — Revised Code of Alabama, §§ 2073, (1750,) 2077, (1752.)

The excuse for the omission to take security required by law set up, is, that it was done with the assent of the distributees of the estate. Walls and wife (the latter being a distributee) objected to the credit. This they had a right to do, unless they have estopped themselves from making the objection. If it appeared that Mrs. Walls had a statutory separate estate in her distributive share, it would be plain that she was not estopped, for there was no evidence that she was present or knew anything of the giving of the note, but we can not ascertain from the record when the intestate died, or when Mrs. Walls was married, and therefore we are unable to determine whether the distribu, tive share is affected by the law in reference to separate estates or not. But if the distributive share accrued to Mrs. Walls, and she was married before the passage of the first married woman’s law, in 1848, still there is no estoppel. There is no positive evidence that Walls hirnsel, knew that security was dispensed with. It may be argued that he did, but if he did, it does not appear that he assented to the not requiring the security, or made any declaration which caused the administrator to dispense with the security. It was. the legal duty of the administrator to take the security, and his omission of it can not be excused upon the mere ground that the distributee’s husband, who may not have known what was the administrator’s duty, was present and made no objection, if such was the fact We think there is no ground upon which it can be held that the distributee was estopped from objecting to the credit. — Hopper v. McWhorter, 18 Ala. 229; Steele v. Adams, 21 Ala. 534; Colbert v. Daniel, 32 Ala. 314, 327; McKleroy v. Tulane, 34 Ala. 78; Traun v. Keiffer, 31 Ala. 136; 2 Smith’s L. Cases, 661.

The only Confederate money proved to have been received by the administrator was that paid by Coman and Tanner. At the time of the trial, the affidavit of the administrator was not evidence in his favor. The administrator had no right to loan the money of the estate, and he is chargeable at the election of the distributees for money so loaned as upon a conversion of the assets. As the whole of the Confederate money brought in was received in payment of debts for money loaned, the administrator had become liable for it, by the loan, at the election of the distributees. There was, therefore, no evidence to sustain the credit, and it should have been rejected. — De Jarnette v. De Jarnette, in mms. There was no proof tha. any Confederate money on hand belonged to the estate, and constituted a legal credit for the administrator.

Reversed and remanded.