Harbin v. Levi

GOLDTHWAITE, J. 1. Y7hcn a contract is made with an administrator, with reference to the personal assets of his intestate, he is not compelled to sue as administrator for its breach, although he may do so if he will. [1 Chitty’s Plead. 14; Lowell & Wife v. Watts, 6 East, 405.] As the person contracting with him has dealt with him in his representative character, there is no reason why it should be alleged in the pleadings; and if alleged, it will be considered as mere descriptio personae. In Caller v. Dade, [Minor 20,] it was;held, where an administrator declared on a bond payable to himself, as administrator, no proferí of letters was necessary, because the defendant had admitted his representative character by giving the bond. The same reason applies to every case of a contract made with an administrator as such. The objection made with respect to the refusal to give oyer, when demanded, is not, therefore, available. 2. The same reasoning will apply to the plea of tie unques administrator, as that is nothing more than an attempt to revive the same question, which is concluded by contracting with the party as an administrator. 3. The next matter we shall consider is, the set-off attempted to be given in evidence. This was properly rejected, for two reasons: 1st, it occurred after the commencement of the suit; and 2d, because the assets of the estate could not thus be perverted to pay the personal debts of the administrator. In this State, the administrator is compelled, on many, perhaps most cases, to sell the personal property of his intestate on credit; and it cannot be supposed that his personal creditor ought to be permitted to absorb the assets, either in whole or in part, by off-setting his claim, when sued for a demand properly belonging to the unadminis-tered assets. 4. When a purchase is made from an administrator, and the property is delivered under the sale, the necessary implication against the purchaser is, that every matter necessary to make the sale legal and operative, has been performed; and we cannot [402] suppose a case, where such a defence would be allowed to a purchaser retaining the thing purchased. It is the genera], if not the universal rule, that one, in this condition, is estopped from denying his vender’s title. [Ogburn v. Ogburn, 3 Porter, 126; Cullum v. Branch Bank at Mobile, 4 Ala. Rep. N. S. 21.] 5. The question remaining to be considered, is that which arises upon the second plea of the defendant, and his offer, at the trial, to prove that Levi had been removed from his administration before the commencement of this suit. We shall consider the question as it arose at the trial. It will be borne in mind, that the evidence of the plaintiff had previously disclosed that the contract was made with him for the purchase of property belonging to his intestate’s estate. The rights and duties of an administrator, under the earlier English statutes, are very different from what they are in this State. There, he was clothed with a discretionary power over the personal estate of his intestate, and when disposed of by him, either for money or on credit, the money or notes wore absolutely his own. Here, however, the administrator is required by law to dispose of the assets on credit, and it is apprehended that, so long as they continue in a condition to be traced, and are not converted into money, they will pass as assets to any subsequent administrator. This, indeed, is the rule in England, when the property has not been changed. In Turner v. Davies, [2 Saund. 137,] an administrator had recovered a judgment in trover for the conversion of property of his inestate, but his letters were repealed before he had execution. On audita querida, by the defendant, it was held, that no execution could go on the judgment, for it was clear that the new administrator could recover it against the same defendant. The principle of that case governed the decision in King v. Green, [2 Stewart, 133,] where a bill single was given to two as the administrators of an estate, who were afterwards removed, and a subsequent administrator was allowed to recover on the bill, without making title through any assignment, but wholly upon the title deduced from his right as administrator. It may be that the report of that case is not sufficiently explicit in showing that the bill was given upon a consideration which made it assets in the hands of the subsequent administrator. Green v. Foley, [2 S. & P. 450,] is another case involving the same principle. There, three administrators, in Geor'gia, had recovered a [403] judgment against Green, two of whom were afterwards removed or resigned, and the third brought debt, in bis own name, upon the record, setting out the facts with respect to the removal of the others. These cases seem to establish, very fully, that an administrator will not be permitted to control the assets of the estate, which he has not reduced to money, after his removal from office,- and the two latter go further, and determine, that the subsequent administrator, of right, is entitled to sue, as administrator, for the recovery of such assets. Such would seem to be the necessary result, from the fact, that such contracts with administrators, are assets of the estate; but, in addition, we have a statute which leaves the matter free from all doubt. It provides that any suit, commenced on behalf of, or against any personal representative of any testator or intestate, may be prosecuted by any one who may succeed to the administration; and, further, that when any personal representative, or guardian, shall be displaced, all moneys due to him or her, in that right, by execution or otherwise, shall be paid to his or her successor. [Clay’s Digest, 227 § 30.] We think it is clear that, immediately on the removal of Levi from the administration, his right over any of the assets of the estate ceased, and that it made no difference whether these assets existed in the shape of debts due to the intestate, or due by contract to the administrator. Beyond this, it also seems clear, that the new administrator would be entitled to recover the assets, partially reduced by Levi, in the same manner as Levi himself could have done, if he had not been removed. The consequence of this reasoning is, that the court erred in refusing to allow the evidence, offered to show Levi’s removal from the administration before suit brought. The same conclusion would apply, also, to the ple^, but we have not examined its form, and, therefore, give no opinion on it. Judgment reversed, and, if desired, it will be remanded.