Elliott v. Eslava , 3 Ala. 568 ( 1842 )

ORMOND, J.

By an act of the Legislature; Aikin’s Digest, 179, § 9, ah executor or administrator may by writing, by him subscribed, and delivered into the clerk’s office, resign his authority.” There is no restriction or limitation to the exercise -of this right, and when- exercised by him, as his authority is at an end,.he ceases from that time to-represent the-. estate. Although the statute is silent, as to the effect such resignation shallhave on suits then pending against the executor, we think it clear that it will not have the effect to abate the suit. By the 8th section ofthe same law, it is provided, that .suits commenced by an administrator, ad colligendum, shall not' abate by the appointment of an administrator in. chief, but be. continued in his name. The 30th section of the same law, expressly declares, that “ when any suit may have been commenced on behalf of, or against the personal • representatives of-any testator or intestate, the same may be prosecuted-by- or against any person or persons who may afterwards succeed to'such-administration, and may at any time be- made parties on motion.” This is decisive to show that the suit did not abate; such would not have been the effect, if the administrator who resigned, had been the sole defendant, and by necessary consequence, no such result can flow from his resignation, there being a representative of the deceased, a party to the suit still remaining. •.

The case of Thomason & Haynes v. Blackwell, 5 Stew. & Porter, 181, has been referred to, as an authority to show that an executor cannot resign pending a suit. That case was depending in the Orphans’ Court, and after the trial of an issue, which ascertained the liability of the executior, but before a . decree was rendered by the Court on the verdict, he tendered, his resignation, which the Court refused to receive. This Court held, that whatever might have been the effect of "a resignation at an earlier stage of the proceedings, it eould have no effect after the liability of the executor was ascertained, -and nothing remained to be done but the rendition of the- decree. The Court too, lay stress on the fact, that the proceeding was in the Orphans’ Court, where the resignation mu$t be made.

■ It is obvious; that the decision made in the case cited, 'cannot affect this case, where the suit was depending in the Circuit Court, and the liability of the administrator, undetermined at the time the resignation was made. It might also, well be questioned, whether, if erroneous, any one but the plaintiff below, could take advantage of it. It results -from- what has been said, that the resignation of an executor or administrator will not abate a suit; if there be more than one, the suit Will prbeeed in the name-of, or against those remaining; or if he be the-sole representative of-the estate, will be revived in the name of his successors. .

The demurrer' to the third plea was properly sustained;- It Was wholly immaterial, whether the'defendants qualified as-administrators jointly or severally the plea being utterly frivolous; would have been stricken out on motion, and- would therefore be bad on demm*rer. The remaining question arises on the bill of exceptions. - . ' ■ . . .

• The issue between, the parties, was whether Margaret Elliot, the remaining defendant,'was administratrix of the estate, when the -suit was commenced, ■ To prove that she was, the plaintiff read in.evidence her administration bond, which-bore date, previous to the. commencement of the suit, and in which it was recited that she had been appointed administratrix of the estate of John Elliott, deceased. The defendant then proved that she was appointed and qualified administrate de bonis non, on the 27th June, 1839, and after the commencement of this suit.. The Court charged that she was estopped by her bond from denying the fact that her appointment was not anterior to the commencement of the suit.

The general rule is, that a party is estopped from denying what he has by his bond admitted to be true, but if the opposite party omits to plead it, he hereby consents to waive it and the jury will not be prevented from finding, according to the truth of the case. Trevivian v. Laurence, 1 Salk. 276; Kilheffer v. Herr, 17 Serg. & Rawl. 322; Howard v. Mitchell, 14 Mass. 241. Here the bond was offered in evidence, merely to prove the issue and therefore not conclusive on the jury, if the fact there admitted, was shown not to be true.

The testimony offered to contradict the bond, is not set out in the record. If, as we may presume, it was the record of the County Court, showing the time of the appointment arid qualification of the administratrix, it was testimony of a higher grade than the admission of these facts in the bond. The date of the bond may be a mistake, or the bond may have been given in anticipation of the appointment on the samé day, which was not done. Be this as it may, when the question to be determined, is the existence of a fact, which is matter of record, though the admission of the fact in a bond, would be proof of its existence, it would not be conclusive against the.record, which is the highest evidence of the fact. • If therefore, in this case, the bond had been pleaded as an estoppel, by the plaintiff, in his replication to the plea, the defendant, in her.rejoinder, could have vouched the record of the County Court, showing the true time of the appointment, and qualifying of the admin-istratrix, and it would have been a sufficient answer to the replication.

The Court, therefore erred in its charge to the jury on this point, and its judgment is therefore reversed, and the cause remanded. • . ' .