McAleer v. Cawthon

*675 SOMERVILLE, J. Notwithstanding the presence of several suspicious circumstances tending to impeach the bona fides of J. L. Gawthon’s indebtedness to his deceased wife, their weight is not sufficient to overcome his testimony that he was so indebted in the sum of $1,250, supported as it is by the exhibition of the canceled checks drawn by him on her bank account, and of the note executed by him to her in evidence of the debt. Her estate consisted solely of money on deposit, $2,337.05, and this debt due from her husband, $1,250. Its total amount, therefore, was $3,587.05, and the gross distributive share of J. L. Oawthon, as surviving husband, was $1,793.52. But, under the statute (section 5960, Code 1923), his debt to the estate was a set-off against his share, and independent of the statute, the administrator’s duty was to apply his interest pro tanto to the payment of the debt (24 Gorp. Jur. 487, § 1317, and cases cited in note 34); so that the actual net amount of his share was $543.-52, subject of course to deductions for the expenses of administration, and for the payment of the intestate’s debts, if any there are. It is of course not to be presumed that there are any debts to be paid by the administrator, and, no evidence being offered to show their existence, they will be disregarded as a factor affecting the value of the estate. Therefore when, on December 18, 1924 (four days after the intestate’s death), J. L. Cawthon notified the Merchants’ Bank (where her money was deposited) that it had been selected by the distributees of her estate for appointment as administrator thereof, and that he wished to convey his interest in the estate to his three children (joint owners of the other half of the estate), and directed the said bank to pay over his interest to them, this operated, when accepted by the bank, as an assignment to them of his net interest amounting, as stated, to $543.52. Construing this waiver and assignment along with the other document of the same date (the order to the administrator, signed by all of the distributees, to pay to J. L. Caw-thon $300, and to charge it as an advancement against the distributive interests of the three children) as a single transaction, and looking through its form to its substance, it all amounted simply to this: J. L. Cawthon, knowing that his creditors would otherwise get his interest in his wife’s estate, said to his children: “Give me $300 immediately in cash, and I’ll renounce my right to administer, and you can have whatever is coming to me as distributee.” This $300 was in fact paid to Cawthon by the administrator out of the funds of the estate. It was, in legal effect, an advancement to him, made by the consent, and upon the request of, the dis-tributees. When an administrator voluntarily pays to a distributee the whole or a part of his share in advance of final settlement, the administrator will be liable to creditors of the intestate who are prejudiced by such payment. 24 Corp. Jur. 481, § 1304; Id. 500, § 1341. But there is no liability in such a case to creditors of the distributee, unless by some appropriate process payment to the distributee has beén seasonably intercepted. It results that the net amount of Cawthon’s distributive interest in his wife’s estate, when this bill was filed, was $243.52. For the release and assignment of this balance', whatever it may amount to when costs of administration and other charges, if any, have been deducted on final settlement, there was obviously no consideration paid by the other distributees, parties respondent here. The assignment was therefore void as to creditors of J. L. Cawthon. The decree of the circuit court dismissing the bill of complaint will be reversed, and a decree will be here rendered annulling and canceling the assignment in question, and ordering and decreeing that J. L. Cawthon’s distributive share in the estate of Cora Sidney Cawthon, as ascertained on final settlement, shall be paid by the said administrator to the complainant, as trustee in bankruptcy of the said Cawthon. Reversed and rendered. ANDERSON, O. J., and THOMAS and BROWN, JJ., concur.