Stallworth's Adm'r v. Farnham , 64 Ala. 259 ( 1879 )

BEIOKELL, C. J.

By the common law, as it was recognized and administered by this court, an administrator whose authority ceased by resignation or removal, or the personal representatives of a deceased administrator, could be required to account only to the persons beneficially interested in the estate, — distributees, next of kin, or creditors. An administrator de bonis non succeeded only to the goods and chattels, rights and credits of the intestate, which were unconverted or unadministered by the administrator in chief. He was without authority, as the administrator in chief was without duty to him, for defaults or devastavits during the preceding administration. — Chamberlain v. Bates, 2 Port. 550; Judge v. Price, 6 Ala. 36; Willis v. Willis, 9 Ala. 721; King v. Smith, 15 Ala. 264; Nolly v. Wilkins, 11 Ala. 872; Whitworth v. Oliver, 39 Ala. 286.

The jurisdiction of the Court of Probate, or of the Orphans’ Court, as the court was originally designated, was plenary as to the settlement of the accounts of an administrator or executor, compelling him to distribution, or the satisfaction of legacies, and holding him to responsibility for defaults or devastavits. Until expressly conferred by statute, the court was without jurisdiction to call the personal representative of a deceased administrator, or executor, to a settlement of the administration of his intestate or testator. The jurisdiction resided exclusively in a court of equity. — Taliaferro v. Bassett, 3 Ala. 670; Snedecor v. Carnes, 8 Ala. 655. By the act of the General Assembly, approved January 27th, 1815 (Pamph Acts 1844-5, pp. 166-7), the jurisdiction of the court was enlarged, and full authority was conferred to call the personal representative of a deceased executor or administrator to an account of the administration of his testator or intestate ; and such accounting could be had with the administrator de bonis non, or with distributees, or legatees, or creditors.

The general statute then, as now, authorized the Court of Probate, whenever a decree was rendered against an executor or administrator on a final settlement, and execution thereon against him was returned no property found, to issue an execution against the sureties on his bond. In Jenkins v. Gray, 16 Ala. 100, it was determined, that this statute did not authorize the court to issue execution against the sureties on a decree rendered against the personal representative of their principal, on a settlement made by him of the administration of the principal. In the subsequent case of Gray v. Jenkins, 24 Ala. 516, it was determined, that an action at law would not lie against the sureties for the recovery of such decree. The settlement and decree was, as to them, res inter alios ada, — not binding upon, and not evidence against them. It simply bound the personal representative of their principal, and the assets of the principal coming to his hands for administration.

An act of the General Assembly, approved February 4,1846, changed the common-law principle to which we first referred. Under its operation, the right and title of an administrator debonisnon was not confined to the unadministered or unconverted- assets, remaining in specie. He was charged with the right and duty of calling his predecessor to an account of his administration, and charging him with all defaults and devastavits. His right and duty, in this respect, was not. distinguishable from his duty and right in reference to the choses in action of his testator or intestate, — Waring v. Lewis, 53 Ala. 628. The several statutes to which we have referred, are substantially re-enacted, and incorporated in the Code of 1876, forming sections 2537-40, 2590-96.

The present bill is filed by an administrator de bonis non, against the personal representative and sureties of the deceased administrator in chief, for an account and settlement of the administration of the intestate. The allegations are, that the deceased, in the course of his administration, received assets for which he did not account, and died without having made settlement; that after his death a settlement of his administration was made in the Court of Probate, by his personal representative, and a decree rendered against her, in favor of the administrator de bonis non, for a large amount, upon which execution was issued and returned no property found. A demurrer to the bill, on the ground that the complainant had an adequate remedy at law, was sustained, and the bill dismissed.

The error in sustaining the demurrer is apparent from the decisions to which we have referred. The settlement made by the personal representative of the deceased administrator, and the decree rendered against her, were not binding upon, or evidence against the sureties. No action at law upon the bond of the deceased administrator, against them, founded on that decree, could have been supported. It is a judgment or decree against their principal, for whose acts they have agreed to be liable, rendered against him in his representative capacity, that is evidence against, and binding on them, and the foundation of an action at law against them ; and not a judgment or decree against the personal representative of the principal, for whose diligence and good faith they have not consented to be answerable. Nor had the Court of Probate, as was determined in Jenkins v. Gray, supra, authority to issue execution on the decree against the sureties. It is only against the sureties of the executor or administrator, against whom the decree is rendered, that such authority is conferred. Code of 1876, § 2619. There was no remedy for the complainant in any other tribunal, than a court of equity.

2. The failure to file the exhibits referred to in the bill, was not a good cause of demurrer. An order on the complainant to produce and file them, if not obeyed, would have justified the striking of the bill from the files.

The decree of the chancellor must be reversed, a decree here rendered overruling the demurrer, and the cause will be remanded to the Court of Chancery.