James v. Faulk , 54 Ala. 184 ( 1875 )

BRICKELL, C. J.

The demurrer to the bill was properly overruled. No proceeding for a final settlement of the administration had been commenced in the court of probate. Before such proceeding, a legatee may, as a matter of right, without the assignment of any special cause for equitable interposition, resort to equity for a settlement of the administration.—McNeil v. McNeil, 36 Ala. 109.

Administrators and executors are clothed with the power of renting the real estate of the decedent.—R. C. § 2076. The power involves the duty, and if he neglects it, he is answerable for the loss resulting, as he is for the neglect of any other duty with which he is charged.—Pearson v. Darrington, 32 Ala. 227.

An administrator or an executor selling lands on credit, under an order of the court of probate, is required to take of the purchaser bonds for the purchase money, with two sufficient sureties.—R. C. § 2228. If he makes the sale, and disregarding the statutory requisition, takes but one surety, on the confirmation of the sale he becomes chargeable with the purchase money.—Betts v. Blackwell, 2 Stew. & Port. 373; Dean v. Rathbone, 15 Ala. 328; Walls v. Rigsby, 42 Ala. 473. This is admitted to be true as to sales of personal property, but it is insisted that the court is really the vendor of land, when sold by an executor or administrator, and that if the court confirms tbe sale, on a report disclosing that but one surety has been taken, it is a judicial approval of the act relieving him from all liability. The court is the'vendor, to the same extent that it is in all sales made under its decrees, and which require its confirmation to give them validity.—Hutton v. Williams, 35 Ala. 503. The administrator has a power over the lands not derived from the court, but from the statutes. The power, if not as large as that he has over personalty, is conferred to enable him to discharge the trusts of the administration, and is to be exercised so that he may execute these trusts the more beneficially for those having interests in the estate. In making the sale, he is trustee, as well as officer and agent of the court, and it is his duty, prescribed by law, from which the court cannot absolve him, to take at least two sufficient sureties. If he fails in it, the injury resulting is to the same parties who would be injured by a failure to take the requisite security on a sale of personal property. We can see no reason for distinguishing between the two sales.

The only assignment of errors here insisted on in the argument of counsel, refer to the overruling of the demurrer to the bill, and the overruling of the exceptions tothe report of the register, charging the appellants, as executors, with the rent of land he should have rented, and with the purchase money of lands for which he did not take two sureties. There was no error in either of the rulings, and the decree must be affirmed.