Wade v. Pope , 44 Ala. 690 ( 1870 )

PETERS, J.

The facts in this case are almost identically the same as those in Lyon v. Hays' Adm’r, 30 Ala. 430. In this latter case Lyon filed his bill to coerce payment of a debt due him out of the estate of George Hays, deceased, for services rendered by him, at the instance of Robert Leachman, a former administrator cum testamento annexo, in ditching the lands of the estate. The bill alleged, the services rendered were valuable to the estate, and that the complainant had obtained judgment at law against Leachman, on which execution had been issued and returned “ no property found” ; and also that Leachman had made final settlement of his administration, and had been removed from office. This bill was held to be without equity. In delivering the opinion in this case, this court say, “ we concur in the opinion expressed by the chancellor, that the complainant’s bill contains no equity. According to the decision in Jones v. Dawson, 19 Ala. 872, which we are not willing to overrule, one rendering services to a trust estate, under the employment of the trustee, has no redress against the trust, except to subject an equitable demand of the trustee to the payment of the debt.”

Here the appellant, Wade, charges in his bill, that Mrs. Pope, the appellee, was appointed by her husband at his death, executrix of his will; that the will gave her, as such executrix, power to carry on the farm and manage it as the husband did in his life time; that Mrs. Pope qualified as such executrix, and managed said farm under said will; that her testator’s estate consisted of “ lands, slaves and stock;” that in the year 1856, Mrs. Pope, as executrix, had employed him, said Wade, as overseer on said farm, and had procured him, at her request, to purchase for the use of said plantation certain mules at the price of seven hundred and fifty dollars, which mules were used and worked on said plantation, and that they had been retained by executrix as the property of said estate ; that appellant had sued Mrs. Pope, not as executrix, but in her individual name, in the circuit court of Montgomery county in this State, for his wages and the price of said mules, in which suit he recovered judgment against her in April, 1869, for the sum of $1400,00, damages, and the further sum of $503,65, costs of suit, on which judgment execution had been issued and returned “ no property found.” This judgment is against Mrs. Pope in her individual capacity, and not against her as executrix. It is really her debt and not the debt of the estate she represents. And the plaintiff can not go into' chancery and change it from a liability against her to one against the estate of her testator. Such is the attempt here, and it is forbidden by the uniform decisions of this court for many years. — Jones v. Dawson, 19 Ala. 672; Kerman v. Benham, 28 Ala. 501; Lyon v. Hays, 30 Ala. 430; Mulhall v. Williams, 32 Ala. 489.

Note by Eepobtee. — At a subsequent day of June term, 1869, a rehearing was asked by appellants; to which the following response was made at the present term.

The executrix is a trustee, and if the will gives her authority to contract debts for expenses incident to the management of the estate she represents, then she is liable at law for such debts, as such executrix.

The decree of the chancellor dismissing the bill in the court below is affirmed at the costs of the appellant and his securities in this court and the court below.