Thomas v. Sterns , 33 Ala. 137 ( 1858 )

STONE, J.

—We do not, in this case, propose to determine whether, under the pleadings, the defense of non-claim can be entertained in favor William Thomas, the first administrator. Nor do we, in this case, decide whether Sterns, the administrator of William Thomas, can rely on the failure of complainants to present the claim to him.

As we understand this record, we feel it our' duty to •consider the case in two aspects. First, whether there is any privity between Stonum and Sterns, so as to m&ke the judgments of complainants against Stonum, evidence of the debts as against Sterns.

In Rogers v. Grannis, 20 Ala. 247, it was held, that a judgment against an administrator in chief was no evidence against the administrator de bonis non, of the justness of the demand. We can perceive no foundation on whieh to rest a distinction, which, while it denies to a judgment against the administrator in chief all effect as evidence against the administrator de bonis non, will accord to a j udgment against the administrator de bonis non the dignity of evidence against the administrator in chief, or his personal representative.

In the case of Wenrick v. McMurdo, 5 Randolph, 51, 55, the court, in speaking of the office and duties of an administrator de bonis non, said: “Between himself and Ms predecessor there was no privity. His . commission gave him power to act, and to represent the testator or intestate, so far (and so far only) as there remained unadministered goods, chattels and credits, which were of the testator or intestate at the time of his death.” Speaking •of what amounts to an administration, either by the administrator in chief) or the administrator de bonis non, the opinion adds: “Both held in autre droit; and, therefore, neither could dispose by will of the property remaining in specie; but both had the power, while living, of changing, altering, and converting the property; and whatever was thus altered or converted, became their own goods, and descended on their deaths to their own representatives. Such change or conversion of the goods was (so far as regarded the administrator de bonis non) a complete administration, and put them as effectually beyond the reach of his commission, as if they had never belonged’to the testator or intestate.”—See, also, 1 Lo-max on Ex’rs, (2d ed.) 548.

The act of 1845 (Pamph. Acts, 167) empowered the orphans’ court, in all cases, to bring the administrator, &c., of a deceased administrator to a settlement; and declared, that such administrator of an administrator should be “liable to account either with the distributees, legatees, creditors, or administrators de bonis non, or executor with the will annexed, of his testator’s or intestate’s testator or intestate.”.

It is manifest, that the act of 1845 contains nothing which creates a privity between the offices of administrator in chief and administrator de bonis non, further than its express provisions extend. It nowhere declares, that a judgment against an administrator de bonis non shall be evidence of a debt against the administrator in chief; much less, against the administrator of such administrator. We cannot hold, then, that the suit and recovery against Stonum, the administrator de bonis non, was so far a proceeding against Sterns, or the effects of Joseph Thomas in his hands, as that he was bound to retain those effects for the payment of the judgments which the complainants might recover in the suits at law. He, Sterns, was liable to account to the legatees and distributees, as well as to and with creditors; and, without going farther at this time, we .think it clear that even notice of the existence of those suits against Stonum, without more, neither cast on him the duty, nor armed him with the power, of arresting or preventing the distribution of the effects of the estate of Joseph Thomas in his hands. If the creditors had instituted proceedings against Sterns, possibly the rule would be different.

Second: It may be contended, that inasmuch as the complainants have unproductive judgments against Stonum, as administrator de bonis non of Joseph Thomas, deceased, and Sterns had in his hands effects belonging to said estate, this bill may be entertained as a creditors’, or garnishment bill, to reach equitable property. A complete answer to this is found in the fact, that long before this bill was filed, Sterns had come to a settlement, and distributed the effects in his hands. It does not vary the case, that the judgments are, as is alleged, informal, in not naming Sterns personally. The amounts were ascertained, and the “ administrator of William Thomas, who was administrator of Joseph Thomas,” was directed to pay them. The record shows, that Sterns was the person designated; and under the authority of Smith v. Redus, 9 Ala. 99, such defect is amendable, and will be considered as amended. It is not necessary to go further in this case.

Decree affirmed.