Lambeth v. Garber , 6 Ala. 870 ( 1844 )

GOLDTHWAITE, J.

There is in this case, an error which goes to the entire settlement, and which renders it improper to determine any other question raised upon the record.

It appears that the estate has never been represented insolvent by the present representative, and such a representation, in our opinion, is absolutely essential, to give the county court jurisdiction to decree in favor of creditors. This subject was examined at some length in Clark v. West, [5 Ala. Rep. 117,] and there we endeavored to show that the peculiar jurisdiction exercised over insolvent estates, arises out of, and is dependant upon the report of the administrator. This case differs from that, .in the circumstance, that a previous administrator had so reported, and afterwards resigned before any settlement with the county court; this circumstance does not change the legal aspect of the case. The general course of decision has been to consider each administration as entirely distinct from any other; and accordingly it has been held that an administrator de bonis non, could maintain no action against the representatives of the previous administrator for assets of the estate received by him. [Chamberlayne v. Bates, 2 Porter, 550.] So, likewise, as to a suit upon the official bond, for the benefit of the administrator de bonis non. — - [Judge County Court v. Price, 6 Ala. Rep.] In Thomason v. Blackwell’s adm’rs, [5 S. & P. 181,] and Driver v. Riddle, [8 Porter, 343,] it was held, that an administrator could not, by resigning the trust, discharge himself from a suit in progress against him, without showing an administration or want of assets.

It it true, in Chamberlain v. Bates, the court express the opinion that the decision then made would not necessarily determine that a report of insolvency, by an administrator de bonis non, might not draw to the jurisdiction of the county court the settlement with the previous administrator, or his personal representative. Whatever may be the proper course of practise in that case, it is not the one presented by this record; but here the administrator de bonis non is sought to be charged by reason of an act with which he has no connexion, and over which he coaid exercise no judgment or control. The right of contesting demands assorted by creditors is one of great importance to those who are entitled to distribution; and, when the estate is solvent, the administrator is alone authorised to act upon them. When the estate is insolvent, the distributees cease to have any interest in it, and instead of a representative in their behalf, the law has very wisely substituted the judge of the county court or commissioners, to determine on the claims presented as between the several creditors, and the administrator has no voice in the matter, except to render a true account of the assets. We may remark that the law will not permit one administrator to be bound by the admissions of his co-administrator. [Caruthers v. Mardis, 3 Ala. Rep. 590.] Here, the attempt is to bind one by an antecedent act of another, which seems to fall within the same principle. The only doubt we have in this case, has been from the supposed influence it might have upon the bar presented by the statute of non claim, and the questions therewith connected; but it does not seem to follow that the bar would not attach to the first grant of administration, or that a presentation of the demand to the first administrator would not avoid the bar. These matters seem to have been somewhat considered in Hazard v. Purdom, [3 Porter, 43,] but no decision was made upon them.

Upon the whole, we are of opinion that the judgment of final settlement must be reversed for the error in rendering judgment in favor of the unpaid creditors.

Judgment reversed and remanded.