Campbell v. American Bonding Co. , 172 Ala. 458 ( 1911 )

McCLELLAN, J.-

Assumpsit, as for money bad and received, against a surety on an administrator’s bond.

Tbe liability of tbe surety sued must, of course, depend upon tbe liability of tbe principal, tbe personal representative as such. If tbe liability of tbe administrator is individual, personal, tbe surety cannot be held, for bis assurance is for tbe faithful performance of tbe administrator’s duties in bis representative capacity alone.

A test of representative or individual liability is whether tbe judgment, tbe suit against tbe administrator as such would invite, would “fasten or establish a liability upon or against property of the decedent.” — Ala. State Bank v. Glass, 82 Ala. 278, 2 South. 641; Burdine v. Roper, 7 Ala. 466; Weeks v. Love, 19 Ala. 25; Godbold v. Roberts, 20 Ala. 354.

Again, the accountability of the administrator in his representative capacity is limited to assets of the estate of his decedent. — Spotswood v. Bentley, 132 Ala. 266, 31 South. 445; Daily v. Daily, 66 Ala. 266.

No promise implied by law can be raised against the estate of a decedent in consequence of the personal representative’s engagements or acts in respect of matters he could not, as such administrator, expressly bind the estate of his intestate. — Godbold v. Roberts, supra.

The money sought to be here recovered of the surety came into the hands of the administrator by virtue of a decree of the Madison chancery court, foreclosing a mortgage, which decree was afterwards reversed in this court. — See Campbell v. Hughes, 155 Ala. 591, 47 South. 45. That reversal wholly annulled the decree assailed. — Marks v. Cowles, 61 Ala. 299.

It also conclusively established the fact that the money now sought to be recovered was not assets of the estate of John Hughes, deceased.- — Burdine v. Roper, supra.

■It follows from these established principles that the liability plaintiff would here assert is against the administrator in his individual capacity, and not in his representative capacity. In consequence, the surety sued is not responsible, and the court did not err in its rulings sustaining the demurrer.

Since the long entertained view of this court is as the decisions cited demonstrate, we do not feel at liberty to take account of the opposite conclusion embraced, it may be, by other tribunals. Those cited will be noted by the reporter.

The judgment must be affirmed.

Affirmed.

Simpson, Anders'on, and Mayfield, JJ., concur.