Jenkins v. Gray , 16 Ala. 100 ( 1849 )

DARCAN, J.

Augustine Jenkins, in April 1822, executed his last will and testament, by which he appointed William -Jennings his executor. In May 1823, the testator having departed this life, the will was admitted to probate in the Orphans’ .Court of ¿Lawrence, and letters testamentary .issued to William Jennings, he having given bond in the sum of six thousand dollars, with Gray and Anderson as his securities. In 1825, Jennings died, without having made a settlement of his accounts as executor. Letters of administration, with the will annexed, on the estate of Jenkins were granted to another, but it does not appear, that there was any representation of the estate of Jennings, the executor, until the year 1846, when Gallaway, the sheriff of Lawrence county, was appointed administrator by virtue of his office. The estate of Jennings was declared insolvent, and on the application of Galla-way, a final settlement of .the administration of Wm. Jennings was made, and a decree rendered against Gallaway, the administrator, for eight thousand one hundred and fifty-nine 93-100 dollars, being the amount of the assets received by Jennings, the executor, and wasted or not accounted for by him. There being three legatees entitled to tills sum, it was divided into three equal parts, and a separate decree rendered in favor of each for his share or proportion. Executions were issued on these decrees, which being returned, no property, executions were issued against the securities of Jennings, the executor. The securities moved to quash the executions, on the ground that they were issued against them without authority of law. The motion was granted, and from the judgment quashing the executions, a writ of error is brought to this court.

Previous to the Act of the 27th January 1845, the Orphans’ Court had no jurisdiction to compel the representative of a deceased executor, or administrator, to settle the accounts between the deceased executor or administrator and the estate which he represented; and if the deceased executor or administrator had committed a devastavit, or converted the goods of his decedent to his own use, the parties, whose rights were affected thereby* were compelled to resort to a court of equity for relief, to charge the estate of the deceased executor or administrator with the waste. Taliaferro v. Bassett, 3 Ala. Rep. 670; Snedicor v. Carnes, 8 Ala. Rep. 655. To remedy this defect in the powers and jurisdiction of the Orphans’ Court, the act alluded to was passed, which confers jurisdiction on the Orphans’ Court, to compel an administrator or executor of a deceased, administrator or executor to account for effects which had been received by such deceased executor or administrator, and wasted or not accounted for by him. But as to the mode in which the decree that may be rendered on taking the account shall be enforced, the Act of 1845 is entirely silent, and the question is, can an execution issue against the securities of the deceased administrator or executor, after an execution on such decree against the administrator or executor of the deceased administrator or executor is returned, no property found.

By the Act of 1830, (Clay’s Digest, 304, 305,) all final decrees against an executor or administrator, or guardian, are declared to have the force and effect of judgments, on which executions may issue; and by the Act of 1832, (Clay’s Digest, 305) upon the return of the execution, no property found, execution may issue against the securities of such executor, &c. The language of this Act is, “ whenever any execution shall have issued on any decree made by the Orphans’ Court on final settlement of the accounts of executors, administrators or guardians, and is returned no property found generally, or aq lo a part thereof, execution may, and shall, forthwith issue against the securities of such executor, administrator or guardian.” It is very clear that the securities against whom execution can issue, on the return of no property, are the securities of the executor, administrator, or guardian, against whom the decree is rendered, and execution cannot be issued against the securities of a deceased executor, administrator, or guardian against whom no decree is rendered. Before the Act of 1845, no one would contend that the securities of Jennings were liable to this summary remedy, because, until the passage of this Act, the Orphans’ Court had not jurisdiction to compel the representative of Jennings to settle the accounts between him and the estate of his testator. This Act, however, gives this jurisdiction to the Orphans’ Court, but does not prescribe how the securities of the deceased executor, administrator or guardian, shall be made responsible for the de-vastavit ; consequently neither the Act of 1832, nor of 1845, subjects the securities to this summary' remedy. The execution was therefore issued without authority of law, and was properly quashed.

Let the judgment be affirmed.