Rogers v. Grannis , 20 Ala. 247 ( 1852 )

CHILTON, J.

The first question arising on this record is, whether the admissions of Mrs. McCullough, made while she was administratrix de lonis non, and which tend to show the genuineness of the note sued on, should have been admitted against the defendant, who is sued as her successor.

After the best examination which I have been enabled to bestow upon this point, I have been unable to arrive at the conclusion that the court properly received such admissions.

It is well settled that the admission of one of several administrators shall not be received against another, though they are both defendants to the record, not even to take the intestate’s note out of the statute of limitations. Forsyth v. Ganson, 5 Wend. 558; Caruthers & Kinkle v. Mardis, 3 Ala. Rep. 599, and cases there cited; but this proceeds upon the ground that otherwise the representative making the admission would have it in his power to charge the others with a devastavit. Does a different principle apply when, instead of being co-administrators, one is the successor of the other ?

In Newhouse & Co. v. Redwood’s Adm’rs, 7 Ala. Rep. 598, it was held that the admissions of the administrator in chief were admissible against the administrator de bonis non, to take the demand out of the statute of limitations, in an action against the latter. It is not necessary now to inquire whether this decision can be supported, because, conceding its correctness, it does not decide the case before us. In that case? there was a debt confessedly due from the intestate, and the only question was, whether it was to be considered as paid or discharged from the lapse of time. The admission of the administrator in chief acknowledged its then existence as a subsisting valid demand; in other words, he acknowledged the justness of the demand already existing. Here, the existence of the demand is the question. Did the intestate make the note? If he did not, no admission of the former administrator could create a liability upon the estate, but at most, could bind him personally, if such as could be enforced under the statute of frauds.

The distinction between admissions which merely avoid the statute, and those which go to create a liability, is recognized in many cases. See cases cited in 4 Cow. 493.

It is discretionary with the administrator, whether he will plead the statute of limitations, and if he make a new promise so as to avoid it, this promise, it may be said, goes with the debt, and revives it against the estate, and consequently against any subsequent representative. But it is not in his power to create a debt or liability against the estate, and therefore his admissions cannot be received against his successor. To allow them would, in many instances, work irreparable injury to the estate, in charging it with debts which have no foundation in fact, and in cases of this kind, compelling the estate to lose the demand, or turning the administrator de bo-nis non round upon the previous administrator, to recover for making improper and false admissions. Indeed, no administrator de bonis non could tell how the estate would turn out, or what course he should pursue in its administration, if every conversation or admission of his predecessor might be received injuriously to affect it in his hands; see Hall, Ricks & Co. v. Darrington, 9 Ala. Rep. 502. The cases collected in Phillips’s Evidence, (C. & H. notes,) vol. 2, 167 to 172, sustain the conclusion that such admissions should not be received.

It follows that, as the direct admissions of the previous administrator could not be received, the implied admission arising from judgments against the administrator in chief, on notes signed in a similar manner by the intestate, was improperly admitted.

Let the judgment be reversed and the cause remanded.