Gayle v. Elliott , 10 Ala. 264 ( 1846 )

COLLIER, C. J.

The act of 1821 authorizes an executor, administrator or guardian, to “ resign his or her authority;” but provides, that “in such case, he, she, or they, and his, her or their securities, shall be bound for all the assets or effects, which shall not have been duly administered or applied, or shall not be delivered to their successors respectively.” [Clay’s Dig. 222, § 9.] Under this statute, and in conformity to the decisions at common law, we have held that “no administrator or executor, can by resignation of his authority, avoid any liabilities imposed on him by law; and that he can only be discharged by showing an administration or want of assets.” [Driver v. Riddle, 8 Porter’s Rep. 343.] To the same effect are the other-cases cited for the defendant in error on this point. The third plea is defective in not showing an administration of the assets that came to the defendant’s hands, or their delivery to his successor.

The fourth and fifth pleas both alledge a settlement of the defendant’s administration accounts, his resignation, and the delivery by him of all the property which he had received, as administrator, to Savage, his successor. Conceding the settlement with the orphans’ court, and the resignation of the defendant to have been sufficiently shown, and we will inquire whether the delivery of the estate, which came to the defendant’s hands was so proved as to discharge him from liability. The evidence upon this point is substantially this: the defendant resigned his administration on the 27th December, 1845, and his successor was appointed on the 15th January following; that all the property which the defendant had received as administrator, and had not administered was, at the time of his resignation, on the same plantation on which it was when he was appointed; after his resignation this property was clandestinely removed by persons unknown and carried to parts unknown, so that it never came to the possession of Savage.

It does not appear in totidem verbis, that the removal took place previous to the appointment of the administrator de bo-nis non; but from the manner in which the facts are stated, we must infer that it occurred between the time of the resignation and the appointment of the successor; especially as the bill of exceptions must be taken most strongly against the party excepting.

The statute is explicit, and declares that an administrator shall not discharge himself by resigning his trust; it is made-his duty to deliver to his successor all the assets and effects which shall not have been duly administered or applied. True, the authorities and duties of an administrator cease with the resignation of his trust, and settlement of his accounts, but his conservative powers in respect to the estate, Still continue, until he absolves himself from responsibility, by delivering it to a successor. He has not only the power, under such circumstances, to preserve the estate, but the law makes it his duty; otherwise he would not be able to do, what not only the statute, but the common law enjoins on him.

The mere fact, that the assets remained where the testator by his will directed, at the time of the defendants resignation, did not relieve him from taking care of the property, that he might have it ready to be delivered to the administrator de lonis non. What acts on the part of the defendant would have been necessary to have placed his successor in possession of the estate, if the personalty had not been removed, need not now be considered, since it is clear that the proof falls short of establishing the delivery.

Can it be true, that 'the clandestine removal of property from an administrator, would discharge him from liability to account for it, where it is not shown that he took such care of it, as a man of prudence would have taken of his own estate ? Should it not at leas.t appear that he was not chargeable with neglect, or the want of a proper supervision ? Certainly it would seem that greater indulgence should not be allowed. So that even if the first facts stated, constitute a larceny, to make them available as a defence, it must appear that the property was not put at peril by the defendant’s carelessness.

It is scarcely necessary to add, that the defendant cannot .excuse the non-delivery of the personalty, by proof that the real estate went into his successor’s hands, under the provisions of the will. The statute only entitles him to his discharge upon the delivery of “all the .assets, or effects, which shall not have been duly administered or applied.

The view we have taken, is conclusive that the pleas were 'not sustained by the evidence, giving to it a reasonable, and even a liberal interpretation. Considering the charges prayed in reference tc the evidence, and it is perfectly clear, that there is no error in the record. The judgment is consequently affirmed.