Kyle v. Mays , 22 Ala. 673 ( 1853 )

GOLDTHWAITE, JV

We decided in the case of Kyle v. Mays, use &c. of Pond, at the present term, that when a decree is rendered against an administrator, on a final settlement, in favor of a distributee, the failure to pay such decree amounted to a breach of the administration bond; and that an action could be maintained against the obligors, without the issue of execution on the decree, or a demand of the administrator.

The difficulty, however, in the present case, is, that the decree was rendered in favor of “ the legal representative ” of the distributee, without naming such representative; and under our previous decisions, this decree, as such, was void for uncertainty. Joseph v. Joseph, 5 Ala. 280; Turner v. Dupree, 19 Ala. 198; Hughes v. Mitchell, ib. 270. It is true, that, under the influence of the case last cited, the settlement might be regarded as evidence of a debt against the administrator, so as to authorize its recovery by the person entitled ; but the administrator cannot be required to pay it, until the party who is to receive it is judicially ascertained. The failure to pay, until then, is not a breach of the bond, and, as a consequence, no action could be maintained on it. The court, therefore, should have sustained the demurrer, and for that error, the judgment is reversed, and the cause remanded.