Miles v. Meade , 191 Ala. 80 ( 1915 )

MAYFIELD, J.

This appeal involves two questions First. Caá a person who is both administrator of A.’s estate, and executor of the last mil of B., be legally charged, on his settlement as administrator, with funds which he received and then holds as executor, there having been no settlement or disposition of the funds as executor? Second, If an administrator, without an order of court, has prematurely paid to a distributee of the estate money which is liable to the claims of creditors of the estate, can he be charged with the money so paid, on final settlement of the estate, on motion of the distributee to whom the payment was wrongfully made? We answer the first question in the negative j the second in the affirmative.

(1) As to the first question, the mere fact that funds, which the representative holds as executor may or will ultimately come into his hands as administrator, will not authorize the court, in his settlement as administrator, to so charge him. He cannot be charged in this capacity until he has received them in such capacity or otherwise, or has so disposed of such funds as to constitute a devastavit, or is guilty of such neglect as to such funds as that he would be chargeable with having received them or their value. Neither does the mere fact, that both administrations are pending in the same court change the result in this case. The two proceedings are nevertheless separate and distinct, and should he so treated. All the parties interested may not he the same; and the court, on a hearing of one proceeding, would not he authorized to determine who all the interested parties are, in the other proceeding, nor the extent of their interest in the other proceeding; nor could it even bind the parties in the one proceeding as to what their interest was or would be in the other proceeding: These would be matters res inter alios acta.

We have been unable to find a case where an administrator was sought to be charged with funds which he held as executor, or vice versa; but we find cases where he was sought to be charged with funds which he held as guardian, and in other representative capacities, and in every instance of this kind it was held that he could or should not be so charged, until the funds came into his hands as administrator, or there were such steps taken by him, touching the funds, as would amount to a devastavit thereof.

In the case of McPhillips. v. McGrath, 117 Ala. 562, 23 South. 724, the court, speaking of liability for a fund held by a register, said: “The question, in principle, is not distinguishable from that which occurs when a personal representative — ah administrator or executor— unites with his relation that of guardian for infant distributees or legatees. In such case, before he is relieved from duty and liability in the primary capacity of personal representative, and duty and liability as guardian attaches, there must be separation of the assets he intends to take and hold as guardian from the assets of the estate; there must be, as to such assets, a termination of authority as personal representative, and to them authority and duty as guardian must attach.— Davis v. Davis, 10 Ala. 299; Whitworth v. Oliver, 89 Ala. 286.”

In the case of Davis v, Davis, above, the court said: “Where the offices of executor and guardian are united in the same person, he holds the estate in his hands as executor, and does not hold anything as gurdian which is not separated from the assets of the estate and placed to his account as guardian. To ascertain the amount in his hands as executor to which the ward is entitled, it is obvious a settlement of his accounts as executor would be necessary.”

This doctrine has been followed in a long line of cases, and it appears to be founded on reason.

In the case of Hutton v. Williams, 60 Ala. 107, it is said: “The general principle is that, if the offices of executor or administrator and of guardian are united in the same person, and the guardian, in that capacity, can acquire possession only from the executor or administrator, as guardian he does not hold the assets until they are separated and distinguished from the assets held as executor.—Davis v. Davis, 10 Ala. 299. The principle involves the existence, at the same time, of two distinct fiduciary relations.”

If the administrator had treated the funds in question as funds of the estate of the father, he might be liable as administrator therefor; but if he received the funds as executor, and holds them as such, and nothing appears to amount to a devastavit as administrator, then he should be charged, not as administrator, but as executor. We do not mean to now decide that a settlement as executor would, in all cases, or in any possible event in this case, be necessary in order to charge appellant, as administrator, with funds which he received as executor; but it must be made to appear that he has received the funds as administrator, or has so acted, or so failed to act, that he can be charged as having received the funds as administrator (which is not made to appear in this case); and it follows that the probate court erred in so charging him on his settlement as administrator.

(2) We do not doubt the correctness of the proposition insisted upon by appellee that, if a creditor of an estate is appointed administrator of the estate, and receives funds of the estate sufficient to satisfy his debt, the law presumes that he will apply the proceeds to the payment of his debt, and that, if he is a debtor of the estate, and is appointed administrator thereof, the law charges him with the amount of the debt as assets in his hands as administrator. But this rule does not apply where one person occupies two offices, or acts in two representative capacities, and is debtor as to one and creditor as to the other.

(3) The second proposition: If this were a suit strictly inter partes, the distributee having received money from the administrator as her distributive share of the estate, she would be estopped from having the administrator charged again with this amount so paid, even if it were wrongfully so paid. She would not be allowed to receive and keep the money so paid, and then charge the administrator with having wrongfully paid it to her. This, however, is not a proceeding strictly inter parties ; it is one in the nature of a proeeding in rem, but is not wholly such. Section 2476 et seq. of the Code malte it the duty of the court or of the probate judge to audit the account of the personal representative, and to require him to make proof of the correctness of each item on the credit side of the account. So it is immaterial that the motion to charge the administrator with' funds wrongfully paid to the distributees was made by one of the distributees who had wrongfully received such funds. The court was not only authorized to so charge the administrator, but it is by statute made the duty of the court so to do. While the administrator may have some redress against the distributees so receiving the funds to which they were not entitled, it cannot be accorded on the final settlement by omission to charge him with the funds so wrongfully paid out. This would deprive creditors and other distributees of funds to which they are by law entitled, and the probate court should not decline to so charge the administrator merely because moved so to do by one who had wrongfully received the funds. The rights and duties of an administrator as to advancing to distributees are well stated in the case of Dickie v. Dickie, 80 Ala. 57, 59, where it is said: “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 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.”

It follows that there was no error in charging the administrator on settlement with the amount paid the distributee, although it was so charged on the motion of such distributee.

For the error in charging the administrator with the funds which he received as executor, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, O. J., and Somerville and Gardner, JJ., concur.