Cunningham v. Beard , 44 Ala. 317 ( 1870 )

B. F. SAFFOLD, J.

Howard was appointed administrator of Stallworth, deceased. He died before making final settlement of his administration, and Cunningham, the appellant in this case, was appointed administrator de bonis non. Beard, the appellee, was appointed administrator of Howard, deceased, and as such, settled Howard’s . administration of Stallworth’s estate. On this settlement, Cunningham, as administrator de bonis non, recovered a judgment against Beard, as administrator of Howard, for $6,861 68, and Beard, in his representative capacity, obtained a decree against Cunningham, in his representative capacity, for $886 28. Execution on both of these decrees was staid for six months. The decree in favor of Beard was for expenses incurred in and about the administration of Stallworth’s estate, since the death of Howard.

The errors assigned are — 1st, the order staying execution on the decree' in favor of the appellant; 2d, the decree in favor of the appellee against the appellant.

This settlement was made under the provisions of sections 2165, 2166 and 2167 of the Revised Code. The probate court may stay execution on any decree rendered under the said sections for any time not exceeding six months, if, in the judgment of the court, the interest of the estate requires it. — Rey, Code, § 2168. In this case, the property of Howard’s estate had just been offered for sale, and the price bid for it was so inadequate that the court refused to confirm the sale. The reason for the stay was altogether sufficient.

The decree in favor of the appellee was rendered under section 2167, and the question of error is, whether the decree in favor of the appellant ought not simply to have been reduced by the amount of the recovery against him. Stallworth’s estate was liable for the expenses of its administration, whether any thing could be obtained on the decree against Howard’s estate or not. The decree in favor-of the appellee was a judicial ascertainment of the amount, which was necessary to be done. There was no error in rendering it.

The judgment is affirmed.