51 Ala. 202 | Ala. | 1874
We shall not pass on the demurrer to the sixth plea, as the counsel for the appellant, in the argument he has submitted, asserts the ruling of the court on that demurrer to be of no practical consequence, because the facts of the case are fully presented by the replication to that plea,
If the sixth plea can be regarded as presenting a defence to the action, the replication was a full and complete answer to it. The primary duty of an executor is the payment of the debts of the testator. This duty binds him both at law and in equity. The assent to, or payment of legacies, leaving debts of the testator outstanding, inverts the order in which the law appropriates the assets. It gives priority to the rights and claims of legatees, which are by law secondary, and subordinated to the rights of creditors. At common law, if an executor voluntarily, in ignorance of outstanding debts, assented to, or paid legacies, he was guilty of a maladministration, and was liable to creditors as for a devastavit. 2 Lomax on Ex’rs, 208; Johnson v. Fugua, 1 Dana, 514; Cookus v. Peyton, 1 Gratt. 431. It was esteemed his own folly to make such payments, or yield assent to legacies, without the protection of the decree of a court of equity, or without demanding the indemnity of a refunding bond. An observance of the statute will relieve the executor from the possibility of incurring a liability to creditors by the payment of, or assent to legacies. All claims of creditors must be presented to him within eighteen months from the time they accrue, or from the grant of letters testamentary. R. C. § 2239. Until the expiration of this period, he cannot be compelled to pay or assent to legacies. Williamson v. Mason, 18 Ala. 87. After the expiration of this period, if an application is made to compel the payment of, or assent to legacies, before a final settlement, the legatee is required to execute a refunding bond, conditioned to refund the amount paid, or to return the property received, or pay the value thereof, with interest, should the assets prove insufficient for the payment of debts and charges. This bond stands as a security, not only to the executor, but to creditors. R. C. §§ 2098, 2113. It is erroneous to decree the payment of legacies without requiring such bond. Johnston v. Fort, 30 Ala. 78. The executor may at any time report the solvency of the estate, to the court of probate, and obtain an order of distribution ; but such order, if made before a final settlement, is not a defence to any action brought against him. R. C. § 2097.
The question raised by the demurrer to the replication was presented to this court in Thrash v. Sumwalt (5 Ala. 13), and it was there held: “ An administrator is bound to a creditor, in consequence of the assets which come to his hands to be administered;- and a distributee has no claim whatever, until the demands of all creditors are satisfied, or legally barred. If, then, the administrator prematurely settles with the distributees, he does not discharge the assets which may afterwards
At common law, an executor, having once accepted the trust, could not subsequently resign, or renounce it. He was compellable to its performance, until it was finally discharged, or his authority terminated by a judicial revocation. Toller on Ex’rs, 42; Wentworth on Ex’rs, 90; 4 Bac. Ab. 53; 1 Williams on Ex’rs, 242. The authority of an executor was, at common law, derived from the will, not from its probate, or from the grant of letters testamentary. Before probate, he could take possession of the personal assets, pay and collect debts, assent to and pay legacies, sell or otherwise dispose of chattels, and do nearly every act which an executor could rightfully do, except commence suits, in which he was bound to make profert of letters testamentary. 1 Williams on Ex’rs, 255. If, before probate, one of several executors administered a part of the assets, he was charged with such as he had received, although he refused to prove the will, and probate was granted to his co-executor alone, to whom he paid the money. 2 Williams on Ex’rs, 1655. So, after probate, and the grant of letters testamentary to the executors jointly, the one may not absolve himself from liability for assets he has received, by paying them to his co-executor. He could not thus exonerate himself, and shift the responsibility, imposed by law, in consequence of his having received assets which he ought duly to have administered. Douglass v. Saterlee, 11 Johns. 16; Edmonds v. Crenshaw, 14 Peters, 166; Cross v. Smith, 7 East, 246.
The statutes authorize an executor or administrator to resign; but his liability continues until he makes settlement of his accounts, and delivers the assets unadministered to his successor. R. C. §§ 2089, 2040, 2279; Driver v. Riddle, 8 Port. 343; Skinner v. Frierson, 8 Ala. 915; Gayle v. Elliott, 10 Ala. 304. Whether these statutory provisions authorize the resignation of one of several executors, and thereby the conversion of a joint into a separate administration, is a question we will not consider in this case. Nor will we inquire, whether they operate a change of the common law, and authorize one of several
The demurrer to the seventh plea should have been sustained. This plea confesses the payments to legatees, voluntarily, of a sum sufficient to have satisfied the debt of the appellant. These payments are averred to have been made with a knowledge of the solvency of the estate, and that there were other assets of the testator in the possession of his co-executor, sufficient to satisfy the debt of appellant, and all other debts against the testator. The payments to the legatees are averred to have been made without notice of, and in ignorance of the existence of the appellant’s claim. The plea also avers the resignation of the appellee, and a settlement of his accounts in the proper court. The resignation and settlement were after the commencement of this suit, and it is not averred that the appellant’s claim was not presented within the period prescribed by law.
When the appellee made the payments to the legatees, voluntarily, leaving debts unpaid, if such payments were made within the period prescribed for the presentment of claims, he committed a devastavit. He perverted the order of appropriation of the assets prescribed by law. His knowledge of the solvency of the estate cannot change the character of his act. It remains a devastavit. If he had reported to the proper court the solvency of the estate, and made the payments under a decree of that court, the statute reserves his liability, declares such report and decree shall not be a defence to any action brought against him. His liabilityds not lessened because his act was voluntary, unsanctioned by judicial decree. Nor does the fact of assets sufficient to pay all debts, remaining in the hands of his co-executor, relieve him from liability. The law cannot tolerate that the creditor should be compelled to accept from another responsibility for the wrong of the appellee. It does not permit the appellee thus to exonerate himself from liability, and shift it to another. The allowance of the defence this plea presents, would open a wide door for the grossest frauds on creditors. A testator may, by express provision in his will, relieve his executor from giving security for the faithful performance of his duties. A creditor, or any one else having an interest, cannot require security from the executor in such case, unless he can show his interest is endangered
For the errors we have pointed out, the judgment is reversed, and the cause remanded.