Dickie v. Dickie , 80 Ala. 57 ( 1885 )

CLOPTON, J.

Tbe evidence does not convince us, that tbe Probate Court erred in refusing to charge tbe administrator with tbe amount alleged to have been collected from Cochran. Tbe witnesses conti-adict each other as to the collection, and there is no proof that Cochran was indebted to the estate. Nor is tbe evidence sufficient to relieve the administrator from liability for tbe pistol purchased by him. Supposition or belief, that it bad been accounted for in some prior aggregate items will not answer. Tbe fact must be made to appear with reasonable certainty.

We are unable to satisfactorily ascertain, from the record, the facts in respect to the sum of $102.19, with which the distributees moved to charge the administrator, as a debt owing by him to the intestate. The administrator, admitting the debt originally, testified that he paid it to the decedent in his lifetime; and yet, as we understand the bill of exceptions, it was included in the inventory returned to the Probate Court in 1868, several years after the death of the intestate. Payment in the lifetime, and a verified admission of the debt several years after death are not reconcilable. If so returned, the administrator is prima facie chargeable; and the onus is on him to show, that it was erroneously included in the inventory, by mistake or otherwise. Without satisfactory explanation, he should be debited with the amount.

In the annual settlement of 1868, the administrator was allowed a credit of $974.45, as disbursed in payment of a note, made by intestate and E. McOlelen, payable to John B. Win, guardian. From the endorsements on the note, it appears, that McOlelen, in February, 1863, paid the sum of $590.30; and in November thereafter, the administrator paid to McOlelen the sum of $384.15, being the balance of principal and interest. The distributees moved to reduce the credit, to the latter amount. What the relation was between the makers, whether of principal and surety, or of co-makers equally bound — is not shown. The credit having been allowed on an annual settlement, the presumption is in favor of its correctness — that the intestate was primarily bound, and that the administrator had refunded to McOlelen the amount he had paid in satisfaction of the rióte. On the final settlement, the burden is on the distributees to show that the allowance is improper. The evidence set out in the record is ineffectual to overcome the presumption of correctness.

The administrator was allowed a credit for money advanced to the widow. The duty and authority of an administrator-are, to receive and collect the assets of the estate, pay the debts and expenses of administration, and distribute the residuum among those entitled. Money, advanced to a distributee during the administration, is not money paid on account of the estate; and the allowance on his account as administrator of a credit for money so advanced, is unauthorized. Such mingling of accounts tends to produce confusion, and to render it difficult, if not impracticable, to ascertain and equalize the shares of the several distributees. The money advanced to the widow should have been disallowed as a charge against the estate, and charged against her distributive share, after it had been ascertained. Willis v. Willis, 9 Ala. 330; Parker v. McGaha, 11 Ala. 521.

During the early period of the administration, Confederate treasury notes constituted the circulating medium, and were employed as money in all the transactions of business. The rule settled by our decisions is, that a personal representative, who received, in the course of administration, and in good faith, Confederate money, did not commit a devastavit, and is only liable for its due and proper administration. A part of the Confederate money received by the' administrator was used in paying the debts of the deceased, and a part was deposited in the proper office to be exchanged for registered bonds bearing interest. The remainder became worthless in the hands of the administrator. The money of the estate was kept separate; no fraud or collusion is charged ; and there is neither allegation nor proof, that it could have been otherwise invested. The court, under the circumstances, properly refused to disallow the credit for the amount funded. Morris v. Morris, 58 Ala. 443; Cumming v. Bradley, 57 Ala. 224; Waring v. Lewis, 53 Ala. 615.

When the decedent is indebted to the personal representative, and assets of the estate come to his possession, the title and ownership of which he can transfer, and which he is legally authorized to apply to the payment of the debt, it is extinguished. No delay in making the application, and no improper diversion of the assets, can defeat the satisfaction of the debt. The law regards it as paid from the time he receives such assets. Miller v. Irby, 63 Ala. 477; Trimble v. Farriss, 78 Ala. 260. Any kind of money, which the administrator receives as a valid payment of debts due the estate, will be effective for this purpose. Having the sole right and authority to manage and collect the assets of the estate by converting them into money, he will not be permitted to receive in his representative capacity a depreciated currency as money, suffer it to become worthless in his hands, devolve the loss on those, whose interests are committed to his care, prudence and management, and keep his own debt alive. Such is not a due and faithful administration of such currency. He must retain in payment of his own claim the same kind of money, which he receives in payment of demands due the estate. The court should have sustained the exception to the allowance of the debt, claimed by the administrator, as due him by the intestate.

At a sale of property of the estate, the widow purchased a negro woman, and gave her note with two sureties for the purchase money. The distributees moved to charge the administrator with the amount of this note. The administrator is prima facie chargeable with the sale bill. No steps were taken to collect the note, except to ask the widow a time or two if she could pay it. The excuse is, that he knew the widow could not pay it, and that he did not bring suit, because he thought it was useless to run the estate to costs. It is not shown, that the makers of the note were considered solvent, when it was accepted by the administrator; and if solvent, that the sureties on the note did not so continue a sufficient time to make a suit available. On the evidence set out in the record, the administrator is chargeable with the note. Stewart v. Stewart, 31 Ala. 207. He should not, however, be charged with the full amount of the note. The property was sold in December, 1862, the purchase money being payable twelve months after date. The reasonable inference is, from the then condition of the country, and the character of the only currency in circulation, that it was expected and understood, that the note was payable in Confederate money. . In such case, the administrator only could have collected the value in good currency of the property at the time of the sale, and only with this amount should he be charged. The sum with which he may be charged should be set off against the distributive share of the widow, pro tanto, unless she interposes some available defense. Whitfield v. Riddle, 52 Ala. 467; Acts 1878-9,186.

Reversed and remanded.