Page v. Bartlett , 101 Ala. 193 ( 1893 )

HARALSON, J.

The commission of the alleged devastavit by J: AV. King, as administrator of J. E. Mayes’ estate, as set up in the bill, would constitute such a breach of his administration bond, as to make it an accrued claim against the estates of his .sureties on his bond, and put into operation the running of the statute of non-claim. — Glass v. Wolf’s Admr., 82 Ala. 281, 3 So. Rep. 11; Martin v. Ellerbe’s Admr., 70 Ala. 326; Taylor v. Robinson, 69 Ala 269; McDowell v. Jones, 58 Ala. 25.

2. The bill shows that James F. Martin, L. M. Bradley, Jos.D. McCann, Jas. L. Bunhill and Thos. Adams were the sureties of J. AY. King,'on his bond as administrator of the estate of said J. E. Mayes. All these sureties, as is shown, are dead, and their administrators, except the one of said Adams, are made parties defendant to the bill, sued, as stated, to require them to account for the alleged devastavit of said King, as administrator of said Mayes. Thos. Adams, as is shown, has been dead for many years, and one AYilliam Hamilton was appointed his executor by the probate court of Clay county, and his estate has been finally settled in said court several years ago. The dates of the appointment of the personal representatives of these several sureties on saidadministion bond were as follows : Henry A. Manning was appointed administrator of J. F. Martin on the 21st of November, 1884 ; AYilliam T. Bisbop and John H. Short, of L. M. Burney, on'the 29 th June, 1888 ; Geo. AV. Bartlett, as executor of Jas. L. Bunhill, on the 7th of December, 1889; and Thos. Northen, as administrator of Jos. D. McCann, on the 18th of September, 1890.

In the original bill as filed no presentment of the claim sued on in this action was averred to have been made to the personal representatives of these several sureties. The presentment was attempted to be shown by the amendment filed to the bill. For the greater certainty, and that we may not misinterpret the averments on which complainants rely, as showing a presentation of this claim under the statute, we quote the language of the amended bill, as f oIIoavs : ‘ ‘ The complainants charge and aver, that the claim for which this suit was brought was, on the 8th day of February, 1890, duly and legally presented to John H. Short and W. T. Bishop, as administrators of L. M. Burney, deceased, and to Geo. W. Bartlett, as executor of Jas. L. Bunhill, deceased, by filing a bill in the chancery court of Clay county, Alabama, against them by Mattie Page, and on the - 18th day of September, 1890, by amendment to the original bill, the other complainants presented their claim against defendants, and that complainants presented their claim to Thos. Northen, administrator of Jos. D. McCann, deceased, on the 21st day of July, 1891, by suing him in the chancery court of Clay county, Alabama. And complainants ayer, that on the 25th day of September, 1891, the bill as originally filed in said case, together with the amendments thereto, was dismissed by the court, on motion of the defendants because there was a misjoinder of parties, in that, because the only party to the original bill of complaint had been stricken out by amendment to the bill, and, because of said amendment, there was an entire change of parties.

"Complainants further charge and ayer, that said original bill and amendments thereto were exhibited in this court by those Avho had a legal right to present their claim to defendants, and that upon the dismissal of their said bill, to-wit, on the 25th of September, 1891, the said complainants or their legal representatives did, on the 26th of September, 1891, file the present bill to this court, seeking to enforce the collection of their said claims.

"Orators further charge and aver, that the reason that their claim was not presented to Jas. H. Short and Wm. T. Bishop, as administrators of L. M. Burney, within 18 months from the time they were appointed such administrators by the probate court of Clay county, Alabama, was because the said Short and Bishop did not give notice to creditors as required by law, to present their claims against the estate of the said L. M. Burney, deceased. And orators charge and aver', that by the failure of the said Short and Bishop to give such notice to the creditors, the said Short and Bishop make themselves personally liable to any creditor whose claim would have been good if presented within 18 months from the date of their appointment.

“Complainants amend their bill by suing John H. Short and Wm. T. Bishop, individually, and so as to strike their names out as originally sued as administrators o£ L. M. Burney.”

It will be observed, that the presentment of this claim is averred to have been made by the filing of two bills in the chancery court of Clay county, the first, on the 8th of February, 18^0, by Mattie Page against John H. Short and Wm. T. Bishop, as administrators of L. M. Burney, and Geo. W. Bartlett, as executor of J. L. Bunhill, and by amendments thereto, filed on the 18th of September, 1890, by which complainants were made parties thereto. It will also be seen, that what right or interest said Mattie Page had in and to the claim upon which the present bill is filed, or what her right of action as set up in said bill as filed by her was, and her right to maintain said bill, are not averred. Neither is it shown what amount she and the other complainants, brought in by amendment, claimed in that suit, nor any facts informing defendants of the existence and nature of the claim and of the intention of those in interest to enforce'it. Substantially, all that is averred is, that 'a claim, without describing its nature or amount, was presented in that suit, which is a mere conclusion of the pleader, not amounting to a presentation as required by statute.— McDowell v. Jones; 58 Ala. 25; Smith v. Fellows, Ib. 467; Bibb v. Mitchell, Ib. 657; Floyd v Clayton, 67 Ala. 265; Agnew v Walden, 84 Ala. 502, 4 So. Rep. 602.

The reference to the second bill, filed on 21st July, 1891, by said Mattie Page against Thos. Northen, as administrator, which is alleged to have been dismissed on the 25th September, 1891, is just as defective as an allegation of presentment, but that defect is cured by the further allegations, that on the 26th of September, 1891, the present bill was filed against said administrator and others, which date is within the 18 months after his appointment, and the claim is sufficiently described in the present bill.

3. The demurrer is confessed as to John H. Short and Wm. T. Bishop, as administrators of L. M. Burney, and by amendment, their names, as such, were stricken out of the bill, and added as individuals, so that the suit should, stand against them in their individual and not in their representative capacity. In this the bill was made multifarious. The claim against them was a personal penalty alleged to have been incurred by them, for which they are answerable at law, and which is a separate and distinct matter, having no necessary connection with the objects of this bill. — Martin v. Ellerbe, 70 Ala. 326, 335; Hardin v. Swoope, 47 Ala. 273; Clay v. Gurley, 62 Ala. 14; Conner v. Smith, 74 Ala. 115, 121.

4. Of Sarah King it is averred, that she was one of the several and only heirs at law of said J. E. Mayes at his death ; that she died in 1884, and that her estate is interested in this suit, entitled to whatever amount she would receive, if living, out of the estate of Mayes, but neither her administrator, nor her heirs at law are joined as complainants or defendants. The bill also fails to aver that there is no administrator or executor of her estate, or whether or not she left children. It was subject to demurrer on this account, and was not a case made out under the statute for the appointment of an administrator ad litem. — Code, § 2283; Fretwell v. McLemore, 52 Ala. 124; Sullivan v. Lawler. 72 Ala. 68, 71.

5. Independent of any of - the foregoing principles, there remains a question which determines the fate of the present bill. The county of Olay was formed out of portions of Talladega and Randolph counties, by act of the General Assembly, adopted December 7,1866. Acts 1866-67, p. b2. The legislature, in the adoption of that act, made no provision concerning the administrations of estates, pending in the probate courts of the counties of Talladega and Randolph, at or after the formation of the new county. It was its exclusive province to do so. In the absence of any such provisions, such administrations continued in the parent counties, unaffected by the formation of the new county. — Vanhoose v. Bush, 54 Ala. 342; Wright v. Ware, 50 Ala. 549; Coltart v. Allen. 40 Ala. 165. The jurisdiction of the old counties in which suits were pending was not ousted in the formation of the new county, either as to the persons or subject matter; and this principle was as applicable to administrations pending in the probate courts of these counties, as to suits in any of their courts. — 4 Am. & Eng. Encyc. of Law, 335 Lindsay v. McCormack, 2 A. K. Marsh. 229; Drake’s Admr. v. Vaughan, 6 J. J. Marsh. 147; Arnold v. Styles, 2 Black. (Ind.) 391; 5 Watts (Pa.) 87.

Mayes resided and died in Talladega county in 1862, and said King was appointed Ms administrator, by the probate court of that county, in that year. If for any allowable reason, it became necessary or proper to transfer the settlement of the administration of that estate from the probate court of Talladega county into a court of equity, the chancery court of Talladega, in whose probate court said administration was pending, and not the chancery court of Clay county, had jurisdiction; and was the one into which such settlement ought to have been removed. In the absence of legislation authorizing it, the chancery court of Clay had no more jurisdiction of the administration and settlement of the estate, than any other chancery court of the State.

6. The 5th section of said act makes provision for the transfer of suits pending against defendants, from the courts of the old counties into the new one, and has no reference to administrations pending in the probate courts of the older counties. Indeed, this provision is to be construed as the expression of a legislative intent that such administrations were not to be removed into the probate court of Clay.

From what has been said, it follows, that the chancery court of Clay county has no jurisdiction of this cause, and a decree will be here entered dismissing the bill.