Clarke v. West

GOLDTHWAITE, J. 1. In the examination of this case, we shall depart in some degree from the order of the argument, and first consider that assignment of error which questions the correctness of the judgment rendered against the sureties. If this is to be considered as the mere award of an execution, having no effect on the rights of the sureties, and not as a judgment, then the writ of error was improperly sued out, and should be dismissed. But we think it must be considered as a judgment, because it has all the distinctive features of one; the facts are set out by which it was induced, and the consideration of the court upon those facts is, that certain persons therein named, recover of certain other persons several sums of money. If such a judgment was rendered in any other State, and sought to bo enforced in the courts here, we should have no authority to look into the statutes of that State to ascertain whether the judgment was warranted by law. The judgment would conclude such an examination. Considering it with reference to our own course of practice we could not supersede an execution issued upon it, if conformable to its terms, for in such a case, it is evident the execution would be perfectly regular. The statute which is supposed to warrant this judgment, is in these terms: “whenever any execution shall have issued on any decree made by the Orphans’ Court, on final settlement of the accounts of executors, administrators or guardians, and is returned by the sheriff ‘ no property found’ generally, or as to a part thereof, execution may, and shall forthwith issue against the securities of the executor or administrator, or guardian. [Digest, 253, § 40.] Nothing is said of any power to render a judgment, and the right of any surety to question his liability upon the bond, exists as fully as if no execution was authorised. The mode of contesting this liability, is not yet clearly settled by the decisions of this court; as hitherto, no case has been presented involving the precise question. The statute does not pretend to conclude the rights of the sureties when allowing an execution to run against them without a suit at law. It merely imposes upon them a necessity to avoid the effect of the execution by showing — 125 — that the bond is irregular, or not binding on them. The County Court, however, has undertaken to decide these questions by its judgment, and having no authority to do so in this summary manner, the judgment is erroneous, and that of the Circuit Court reversing it, was proper. 2. If this judgment against the administratrix and her sureties had been authorized by the statute, in a manner similar to that which once prevailed in relation to forth-coming bonds, it would not be competent for the sureties to review any supposed error in the decree against the administratrix. The judgments in such cases are distinct and separate; and cannot be connected in the same writ of error. This principle is in effect, the same as that decided in Livingston v. The steam-boat Tallapoosa; [9 Porter, 111,] Witherspoon v. Wallis, [2 Ala. Rep. 667.] The writ of error only attaches to the last judgment; and what we have already said, disposes of all the case that is properly before us; but as the suit, without some final decision upon its merits, most probably would return upon us by a writ of error, sued out by the administratrix, we deem it proper to examine the entire case, as it appears in the transcript. 3. It is urged that no foundation is shown to support the peculiar jurisdiction exercised; and it is supposed it can only arise when an estate has been adjudged, as well as reported insolvent. Our statutes, although they leave no doubt with respect to the mode, by which an insolvent estate shall be closed, are not clear as to the manner of ascertaining the fact of insolvency. In our present compilation of statutes, the 28th and 29th sections of the act of 1806, [Laws of Ala. 327] seem to have been omitted.— These sections, it is true, indicate what the report of the administrator shall contain; but their directions seem necessary, only with a view to the sale of the real estate, and if they were now in force, would not relieve the case from its difficulty, which’ seems to be one inherent to the subject matter, arising out of the uncertainty of the investigation. The certainty that an estate is insolvent, can only be made apparent when it is finally closed. An administration would be a most hazardous business in many cases, if the administrator could not protect himself from judgments, when the assets were insufficient to pay the debts already ascertained. In most instances, the plea of plene administravit could not be interposed, because of the impracticability of reduc — 126 — ing the assets to money, inasmuch as our statutes direct a sale on credit; and this, after the sale, involves a considerable period of time in the .collection of the debts thus created. It was in view of these matters, that this court [in Woods v. McCann & Witherspoon, 3 Ala. Rep. 61,] held it to be the duty of an administrator to represent the estate insolvent, whenever he has reason to believe the personal estate is insufficient to pay all the debts ; and that such representation would abate all suits then pending against him. The effect then, of the report of insolvency, is to divest the courts of law of jurisdiction of suits against the administrator ; under the statute, a peculiar jurisdiction is conferred on the judge of the county court, and is divided into two branches: first, to distribute the estate rateably between all the creditors; and second to decree a sale of such portion of the realty of the decedent, as will be sufficient to make up the deficiency of personal assets. [Digest, 151, § 2.] Our business now is with the first branch of this jurisdiction. With this it seems the heir has nothing to do, as he has no interest whatever in the estate, until all the debts are discharged. It is true that the sections of the act just referred to, give the heir the right to contest the insolvency; and so also, does the subsequent act of 1822; [Digest, 180, § 16] but this right does not arise unless it is necessary, and an attempt is made by the administrator to obtain a decree for the sale of lands. Whatever is a matter of doubt upon this subject, under the act of 1806, is removed by that of 1821, [Digest, 154, § 7,] which provides, “When the estate of any testator or intestate shall be reported insolvent, it shall be the duty of the judge of the county court to audit and determine on the accounts relating thereto, according to the regulations prescribed for commissioners in such cases.” From these statutes we infer that the peculiar jurisdiction with respect to an insolvent estate, rests entirely upon the report of the administrator, disclosing the insolvency. It is not necessary to do more-than notice,the distinction between this and the cases of Wyman v. Campbell, [6 Porter, 219,] and Couch v. Campbell, [ib. 262.] Here the question arises on the decree itself, which in those cases was sought to be collaterally impeached. The report of insolvency does not appear in the record, and without it all the proceedings of the county court, treating this as an insolvent estate, are irregular, and subject to be reversed on a — 127 — proper writ of error. The recitals of the report, in the various orders, cannot control this defect (if it is thus defective, in point of fact,) because the act of the court cannot create its own jurisdiction, which, as already shewn, arises only out of the act of the administrator. The report is the only evidence of what it contains, and cannot be ascertained by the consideration given to it by the court. 4. It is next insisted, that the subsequent proceedings in respect to the settlement of the estate were erroneous, because the admin-istratrix had no legal notice of the time and place of settlement. Waiving the consideration of the minor question, as to the manner of giving the notice, we are of opinion she was entitled to none; or rather, that she is to be charged with notice of all proceedings subsequent to her report. The consequence of a report of insolvency, is to make the administrator an actor in the proceedings ; the effect ofit is to discharge him from the suits of the creditors; and when it is made they are entitled to have the assets divided amongst them. The action of the court is invoked by the administrator, and he is bound to take notice of all subsequent proceedings, until the closing of the estate by the final decree of settlement and distribution. Standing in this attitude to the proceedings, it is evident the administratrix cannot object that the creditors have had no sufficient notice, or of any other irregularities affecting them. In this view, the order of the court, on the 2d March, 1841, seems perfectly regular, so far as they are connected with it. The creditors are notified to file their claims in the manner which the law allows ; the day of the final hearing is named, and the place necessarily is the court-house of the county, as the judge of the court himself determines upon the claims. It is only when commissioners are appointed that a different place is allowed (if it even then is) than the court-house. 5. It is said there is no pretence afforded by the record, to charge the administratrix with the proceeds of the sales of the land, and that it does not appear that the assets were reduced to money. It is evident that there can be no distribution of the assets between the creditors until the amount of those assets are ascertained. From this results the necessity, that the judge of the county court shall determine for what the administratrix is chargeable. If an improper charge is made, or the administrator is held to — 128 — account for assets not connected with the administration, or reduced into money, the question must be raised by an exception, and can, indeed, appear in no other manner. [Horn v. Grayson, 7 Porter, 270; Douthitt v. Douthitt, 1 Ala. Rep. N. S. 594.] We may remark also, that it may have appeared to the court, with respect to the notes given for the sales of the land, that the administratrix had received the same under the order of the court, as required by statute. (Digest, 181, § 20.) The regularity of these proceedings is a matter between the heir at law and the administrator ; and the record of the order of sale is not so immediately connected with the administratrix as to require that it should be insisted on in the transcript. Certain it is, that the administratrix could assign no error upon it in a contest with the creditors. If no final decree was made by the court, confirming the sale of the lands, the title is not divested from the heirs, supposing the proceedings for the sale to have been under the act of 1822,—Lightfoot v. Lewis, 1 Ala. Rep. N. S., 475,] and it may admit of doubt, if the administratrix received the money on the notes, without such final decree, whether it would be assets of the estate. But this is a question which we decline to give any opinion upon, as it is not sufficiently presented for adjudication. 6. The only matter not yet examined, is that which relates to the liability of the securities for the proceeds of the land sold or supposed to be sold under the order of the Court. It may be remarked that it does not appear whether any additional bond was given by the administratrix when she received the proceeds of this sale ; in such a case, if there was no remedy on the administration bond, there would be no security at all; but we think a brief examination of the several statutes, will be satisfactory to show that the general administration bond covers, and is intended to cover, all the duties of an administrator. By the act of 1821, [Digest, 177, § 3,] the condition provided for the bond is, that the administrator shall well and truly perform all the duties which are, or may by law be required of him as administrator. It is certain that the chief duty of an administrator is to account faithfully for all the assets which came to his hands ; and therefore the failure to pay out these assets, is a breach of the condition. But it is said that other statutes contemplate that other bonds shall be given when a sale of real estate is decreed; and — 129 — that is a duty which the sureties do not stipulate for, inasmuch as it is provided for by other and express enactments. Thus the act of 1806, [Digest, 181, § 22,] directs that every executor, &c. empowered by the orphans’ court, &c., to sell lands, &c., of any testator or intestate, &c., shall, before he obtains the order of sale from the office of the register or clerk, enter into bond with sufficient securities, to the chief justice of the orphans’ court of the proper county, that he will observe the rules and directions of law, for the sale of real estate by executors, &c., and that he will well and truly account for the proceeds of such sale, and that the same shall be disposed of agreeably to law. And the act of 1822 expressly prohibits the administrator fiom receiving the bonds or money returned by. the commissioners, until he shall enter into bond and security, conditioned for the faithful payment and application of the money, arising from such sale, according to the final decree. [Dig. 181, § 20.] Although this matter is not free from doubt, we think it must be considered that the legislature by these different provisions intended merely to provide additional securities; and did not intend to limit the liability of the sureties on the administration bond, merely to the personal assets. This conclusion is strengthened by the circumstance that no reference is made to the bond to be given for the sale of the real estate, by the statute which authorizes an execution against the sureties.— [Digest, 253, § 40.] 7. If the administratrix in this case had sought to reverse the final decree, all the creditors in whose favor judgments were rendered, would have been necessary parties to the writ of error, under the influence of the decision in Merrell v. Jones ; [2 Ala. Rep. 192] for in no other way could the unity of the proceedings be preserved; it being evident that the same course which would authorize a reversal as to one creditor, must avoid the judgment as to all, or so change its amount as to render it impracticable to render complete justice to all the parties. Our conclusion as to the case, is sufficiently obvious, without a recapitulation. The judgment of the Circuit court is affirmed. The clerk of the court will so make his entry, as to refer to the last judgment rendered by the county court, upon the bond, and must omit the remanding of the case, as no further proceedings can be had in the county court, other than to issue execution according to the statute, unless the administratrix shall supersede the judgment against her.