Ledyard v. Johnston , 16 Ala. 548 ( 1849 )

COLLIER, C. J.

Where an administrator has wasted the estate of his intestate, all legal remedies should be exhausted against him and his sureties, if they or either of them are solvent, before a creditor will be permitted to come into a court of equity to subject the estate which had passed into the hands of the heirs and distributees. — Darrington, et al v. Borland, 3 Porter’s Rep. 9; Pike v. Searcy, et al. 4 Porter’s Rep. 52. These decisions rest upon the ground that the liability of the administrator is primary, and the sureties who stipulated for his faithfulness arc chargeable with his default; that the liability of the heirs and distributees is secondary and contingent merely, depending upon the reception of part of the intestate’s estate by them, and the fact that the creditor has not lost his remedy against the administrator by neglect or other cause.

The eases cited are perhaps decisive of the present, and show that conceding to the bill all verity, the complainants are not entitled to the relief they seek. It is alleged that the complainant’s claims were duly presented to the executor and executrix, who admitted that they were just and promised payment ; that after their resignation, presentment was made to the administrator de bonis non. If these allegations be true, the plaintiffs may sue the administrator,, at law, and it will be no answer to show the administration had been settled by the Orphans’ Court and the assets distributed. It was the duty of the administrator, if the plaintiffs claims are just, to have paid them; if this had been done previous to the settlement of his accounts, he should have charged himself with a sufficient sum and retained it. Their due presentation makes the administrator liable, until payment or the statute of limitations bars a recovery.

The estate not being reported insolvent, in fact its solvency being distinctly alleged, the law did not require the claims to be filed in the Orphans’ Court by the creditor ; and the promise of the Judge of that court, to give him notice and time to meet any objections that might be made to them, can have no influence upon the bill as the case is now presented.. Such an undertaking was rather extra judicial, than within the line of duty, and the failure to comply with it cannot assist the jurisdiction of equity, at least until it is shown that there is no available remedy against the administrator by suit at law.

Previous to the act of 1843, when an administrator proposed, or was required to settle his accounts, be produced his vouchors, most usually accompanied with an account current, to the Orphans’ Court, where an account of Inis administration was stated, and notice given of the time when, the same would he reported for allowance, that all persons interested might appear and contest it. — Legatees of Horn v. Grayson, 7 Port. Rep. 270; Douthitt’s adm’r v. Douthitt, 1 Ala. Rep. 594; Taylor and wife v. Reese, 4 Ala. Rep. 121; Robinson and wife, et al. v. Steele, adm’r 5 Ala. Rep. 473. But since the passage of the actrefered to, it is not necessary for the Judge of the Orphans’ Court to state and audit the accounts previous to the final settlement. — Steele v. Knox, 10 Ala. Rep. 608. It is, however, the duty of the administrator previous to settlement, to file an account between himself and the estate he represents, and at the time appointed in the order of publication “ for said settlement to be made, or so soon thereafter as the same is regularly reached, the said Judge shall audit and examine said account and vouchers, and after hearing the exceptions and objections to the same, (if any are made,) and the evidence adduced, shall proceed to state the same, and render a decree thereon, which decree shall in all respects have the force’ and effect of a judgment at common law.” Clay’s Dig. 229, § 42. If the administrator takes no notice of a claim in his account, or no voucher in respect to it is filed by him, it is not for the Judge to make an addition to the account, unless he shall adjudge it to be proper after legal “ exception and objection.” But could a creditor object to the account, that a claim of which he had given notice to the administrator was not embraced, or should he not .litigate it in another forum by a' suit for its recovery ? It is needless to answer this question, for we have already seen that the plaintiffs upon their own showing have an adequate remedy at law against the administrator, and this is an answer to the relief prayed.

We will not stop to consider the answers and proofs — fit is immaterial what may be our opinion upon these; as the bill is wanting in equity it was rightfully dismissed, and the decree is consequently affirmed.