39 Ala. 286 | Ala. | 1864
The demurrer to the bill in this case, on the ground that when the bill was filed — February 2d, 1861— the complainants, who were residents of the State of Virginia, were alien enemies, and therefore incapable of maintaining an action in our courts, is not well taken. Without intending, at this time, to declare at what time the present war between the United States and the Confederate States had its beginning, we feel no hesitation in affirming that at no time has the commonwealth of Virginia been a party to the war against us; and hence we hold, that the unsupported fact, that the complainants were residents of Virginia, did not, at the time the bill in this case was filed, constitute them alien enemies.
The act of our provisional congress, which first recognized the existence of the present war, was approved May 6th, 1861. — Acts of Provisional Congress, 2d session, p. 22. In the preamble to that act is the following recital; “ And whereas the State of Virginia has seceded from the Federal Union, and entered into a convention of alliance, offensive and defensive, with the Confederate States, and has adopted the provisional constitution of the said states.” The preamble went further, and expressly excepted all the slave states and territories of the former United States,
It is also objected that this bib cannot be maintained, because tbe administration of C. H. Whitworth (tbe elder) has not been settled; and tbat therefore the administration of H. C. Whitworth, who was a distributee in tbe estate of tbe former, has not been completed, and hence cannot be brought to a settlement. It is urged, also, tbat this bib is multifarious, because it joins in one and tbe same suit demands against Mr. Obver growing out of each of tbe
Without intending, at this place, to decide whether or not this objection is well taken, if the pleadings were so framed as to claim relief on this ground, we have no hesitation in declaring, that the bill does not bring this subject before us in such form that we can regard it for any purpose. The only averment of the bill bearing on this question is in the following language: “That the said Wm. C. Oliver, as the administrator of Christopher H. Whitworth, the father of the said Henry C., will have and be entitled, on the final settlement and distribution of the estate of the said Christopher H., to hold and retain for the estate of the said Henry C., his intestate, about $2,347, which ought to be accounted for by him as administrator of Henry C., and distributed between the complainants as his heirs-at-law and distributees aforesaid.” This language, it will be observed, fails to inform us when Mr. Oliver became the administrator of Christopher H. Whitworth, and is silent on the question, whether the assets of that estate have ever come into his hands. It is only by inference that we can learn that the elder Whitworth died before the younger. Language so indefinite can not be the foundation of relief in equity; and hence we regard it as an immaterial averment, which can not affect the result of this suit in any way. As bearing on this, and possibly on another feature of this case (not noticed in argument), see Cookrell v. Gurley, 26 Ala. 405. We regard this bill, in its present form, as simply an attempt to procure a settlement of Mr. Oliver’s second administration of H. C. Whitworth’s estate.
This question is not free from difficulty. It was settled in this State,-many years ago, that an administrator de bonis non could not compel the administrator in chief to pay to him the money which had come into his hands by virtue of the administration ; but that a different rule prevailed as to property of the estate which remained in specie. For such property, the succeeding administrator may maintain an action.- — See Willis v. Willis, 9 Ala. 721; Price v. Simmons, 13 Ala. 749; Judge v. Price, 6 Ala. 36. This disability gave rise to the acts of 1845 and 1846. — Pamph. Acts, 1844-5, p. 166; ib. 1846-6, p. 14.
In the cases of Judge v. Price, and Willis v. Willis, above cited, are expressions, not necessary to the decision of those eases, which are possibly subject to criticism. We allude to the statement, that “the authority of the administrator de bonis non extends only to such of the personalty of his estate as remains in specie, tinálteredor unconvertedbj his predecessor, and so far only can he be regarded a trustee for distributees and creditors.” — See, also, Gould v. Hayes, 19 Ala. 450, and authorities there cited. We do not, and will not, controvert the correctness of the real point decided in those cases — namely, that the administrator de
In Bogle v. Bogle, (23 Ala. 544,) it was held, that tbe administrator in chief discharged himself from liability, by paying over money in bis bands to bis successor; and tbis, anterior to, and independent of tbe act of 1846. — See, also, Willis v. Willis, 16 Ala. 659.
Tbe act of 1821 clearly contemplates, that an administrator who has resigned, or been removed, may pay to bis successor all “assets or effects which shall not have been duly administered or applied.” Tbe cases of Skinner v. Frierson, and Bogle v. Bogle, recognize tbe right of tbe resigned administrator to pay over sucb assets and effects, and thus discharge himself and bis sureties from all further liabilities, including suits then pending against bim. Tbe substance of tbis clause of tbe act of 1821 has been carried into tbe Code, sections 1718, 1719.
But it is, perhaps, not necessary to pursue tbis investigation farther. Tbe acts of 1845 and 1846 removed tbe disability under which tbe administrator de bonis non bad previously labored, and allowed bim to force bis predecessor to a settlement, and to obtain a decree against bim for tbe
Under the Code, (§§ 1718, 1719, 1876, 1878,) it is not only the privilege of the administrator in chief to pay over to his successor the assets and effects of the estate in his hands, not fully administered, but it is his duty; and if he fail to do so, it is both the privilege and the duty of the latter to compel him. From this the following propositions result : Where an administrator in chief resigns, or is removed, or his office expires, before the administration is so far matured as to be ready for final settlement, and an administrator de bonis non has been appointed, it is the duty of the administrator in chief to account to the administrator de bonis non for all moneys in his hands, or converted by him, not paid out or duly expended in the administration ; and it is equally the duty of the administrator de bonis non to collect such funds, thus held, from the resigned or removed administrator in chief.
In South Carolina, the doctrine has been carried much farther. In Enicks v. Powell, (2 Strob. Eq. 196,) it was
Our statutes have restricted the powers of executors and admiaistrators over property assets in their hands; and tills has wrought, in one phase of the question, a modification of the doctrine of presumed payment, in cases where the same person becomes both debtor and creditor. — See Kimball v. Bloody, 27 Ala. 137. But that modification has nothing to do with the present case.
We think there are reasons for a distinction between the present case and that of a person who fills the character of a common contract-debtor to an estate of which he after-wards became the administrator. The liabilities of an outgoing administrator are never fixed and certain; nor are they, generally, in such form as to be susceptible of reduction to a sum certain, without a settlement under the supervision and sanction of the court. At such settlement, the next of kin or legatees have the right to be present, that they may except to the account, appeal from the decree, &e. This doctrine of implied or presumed payment by an administrator in chief, to himself as his own successor, ignores all those provisions of the statute, as to fifing accounts-current, setting a day for settlement, and bringing by notice the parties in adverse interest before the court; provisions which were wisely inserted to prevent error and injustice, and to protect the interests of persons not sui juris. — See Code, pp. 355 et seq.
Another probable effect of this doctrine of presumed payment, if applied to cases like the present, would be to relieve the sureties of the administration in chief from liability for devastavits committed during the term of their responsibility, and fasten the same on the sureties of the
This question is not distinguishable, in principle, from that which was considered in the case of Davis v. Davis, 10 Ala. 300. The office of executor of the will, and that of guardian to one of the legatees, were united in the same person. On the settlement of the guardian, the question arose, whether the share of the ward under the will was chargeable in the account. This court said, “When the offices of executor and guardian are united in the same person, he holds the estate in his hands as executor, and does not hold anything as guardian, which is not separated from the assets of the estate, and placed to his account as guardian. To ascertain the amount in his hands as executor, to which the ward is entitled, it is obvious a settlement of his accounts, as executor, would be necessary.” — See, also, Myers v. Wade, 6 Rand. 444; Broaddus v. Rosson, 3 Leigh, 12; Pratt v. Northan, 5 Mason, 108; Wallace v. Talliaferro, 2 Call, 447; Williamson v. Howard, 2 Rob. (Va.) 39; Swope v. Chambers, 2 Gratt. 339.
“ Where the estate of one decedent is indebted to that of another, and the same person is administrator of both, and wastes assets of the debtor estate, which he was bound, but has failed to pay over to the creditor estate, the sureties for his due administration of the creditor estate are liable for such default and devastavit.” — See, also, Aylett v. King, 11 Leigh, 486.
We hold, then, that it was Mr. Oliver’s duty to reduce the assets of the administration in chief — the estate being not fully administered — to his own possession as administrator de bonis non; and for failing to do so, the distributees may charge him and his sureties as administrator de bonis non, if they elect to do so. If Mr. Oliver’s administration of the estate of C. H. Whitworth had so far progressed as to be ready for settlement and distribution, it was then his duty, as administrator, to settle that estate, and to pass the proper distributive shares over to the distributees. It was also his duty, as administrator of H. C. Whitworth, to reduce to his possession all the available assets of that estate. For neglecting to do so within a reasonable time, he and his sureties are, at the election of the distributees, liable as above indicated.
What we have declared above is independent of the inquiry, whether the assets were wasted or converted before the termination of the administration in chief; or, whether Mr. Oliver was or was not solvent at that time. The law clothes him with the right and duty — the estate not being fully administered, and not being ready for settlement — of passing the liability from one administration- to the other, whether he had retained the money on hand, or had previously wasted or converted the same. — See Code, § 1881; Davis v. Davis, 10 Ala. 300.
The decree of the chancellor is reversed, and the cause remanded.