Howard's Distributees v. Howard's Adm'r , 26 Ala. 682 ( 1855 )

CHILTON, C. J.

—The act of 7th February, 1854, authorizes the distributees of an intestate, in cases where the administrator has died, to call in the personal representative of such deceased administrator before the Probate Court, and have an account taken and settlement made between the estate and the deceased administrator, “ as fully and completely” as could have been made by the deceased administrator were he alive. It is provided, however, by the third section of that act, that such executor, administrator, &c., shall only be liable for the assets that may come into his hands.

In Gray v. Jenkins, 24 Ala. 516, it was said, that the object of such enactment was, to afford the Probate Court the means of reaching the estate of the first executor, or administrator, in the hands of his personal representative, and perhaps the remedy would extend to the assets of the first estate unadmiuistcrod, &o. The act of 1844-5, here construed, was not essentially variant from the act of 1854, now under consideration. It could not have been the design of the Legislature, to limit the account and settlement merely to the unad-ministered assets of the first estate which may have gone into the hands of the personal representative of the administrator of such estate. This would, in most cases, defeat the avowed object of the act, which was, to enable the court to effect a complete settlement in this summary way. Besides, the representative of the first administrator has no right to take the property of the estate upon which his intestate administered, and if ho were to do so, he would be liable to an action at the suit of the administrator de bonis non of that estate.

The meaning of the proviso to the third section of the act of 1854, is, that the representative of the first administrator shall not be held personally liable beyond the assets which may have come tó his hands, — assets of the estate which he represents, and such as he had authority to reduce to possession and administer, — .of Ms immediate intestate.

Had this proceeding been instituted to obtain distribution, under the law as found in the Code, the petition would have been defective, as it fails to specify the share to which the applicants are entitled, or that the assets are more than sufficient to pay the debts, as provided in section 1179. But the application is for a settlement of the first estate, under the act of 7th February, 1854, by the children of the intestate, who are his distributees, and substantially conforms to that act. The court, therefore, improperly sustained the demurrer to the petition.

But it is said that this application may be renewed at any time, — that there is no final decree, nor any such consideration or judgment of the court, as under the existing law will authorize an appeal.

There are cases in which no appeal lies from the refusal of the court to proceed to compel settlements. Such are some of the cases cited by the counsel who moves to dismiss this appeal. ■ In these cases, the court, for reasons deemed sufficient, postpones the settlement or distribution, but makes no final order concluding the rights of the petitioners. Here it is different. The court, in deciding upon the demurrer, adjudges that, unless the petitioners will aver (and, of consequence, prove) that assets of the estate of Robert Howard came to the hands of Clark, the administrator of Wm, Howard, the court had no power to compel him to make the settlement; and for want of such averment, their petition is dismissed, with cost. ¥e think, that under our previous decisions, this is such a judgment as authorizes an appeal. A judgment on demurrer to a declaration is so far regarded as a judgment on the merits, as to be a good bar to an action founded on the same allegations.—Perkins v. Moore, judge, &c., 15 Ala. 17. The case before us falls within the principle of the decision of McDaniel v. Whitman, in which we refused to dismiss.—See 15 Ala. 343.

Let the judgment be reversed, and the cause remanded.