Chandler v. Shehan

GOLDTHWAITE, J. — 1. The question made by the plea in connection with the declaration is, whether a note made by one executor of an estate, and also by a third person as his surety, payable to the executors of the same estate, can be enforced against the surety by a suit at law where the principal debtor, in his, character of joint executor, is one of the plaintiffs. We limit the question to the precise state of facts shown by the record, that it may be seen that we do not intend to consider what the effect of such a note would be if the declara [254] tion was upon it as an express promise by one executor and his surety to his co-executors. [See Philips v. Philips, 1 Stew. 71.] The defendant relies on the decisions of this Court in Tindal v. Bright, Minor 103, and Ramsey v. Johnson, Ib. 418, as conclusive of this part of the case; and the chief distinction between this and those cases arises from the fact, that here the promise is made to the executors of an estate, whilst in those it was to individuals in their own right. On the other hand it is insisted, that as the intention is clearly manifested by the executor who made this note, to bind himself and his surety, they ought not to be discharged upon reasons which, when examined are found to be entirely technical, but that even these can be satisfied by permitting a suit against the surety, as he has a direct remedy under the statute, (Clay’s Digest, 532, § 8,) against his principal, even before the money is forced from him. If the objections against this suit were merely technical, we should be strongly inclined, from our general course of decision, to disregard them and arrive at the substantial justice of the case, independent of technicality. But the question goes much beyond mere technical rules, and involves a principle of considerable importance, with relation to the rights of executors and administrators. An executor or administrator ma3r become a purchaser at his own sale, as seems to be settled by the decision of Brenner v. Oliver, 2 Stewart, 47, where he has au interest. It is not so clear, where a joint administration has been granted, or a joint executorship constituted and the representatives have jointly taken possession of the article committed to their charge, and thus become individually responsible for its proper administration, that one of the executors or administrators, through the medium of a purchase, can invest himself with a title to the property without the consent of his co-representatives. It would seem to be just and proper when a purchase was made by one, if the others were unwilling to extend their liability, that he might bind himself, and consequently his surety, to the others by an express promise to pay. But however this may be, we are satisfied that a security given by one executor in which he with his co-executors is a promisee, cannot be enforced even against his surety when he is one of the plaintiffs. [255] In Childress v. Childress, 3 Ala, Rep. 752, a joint executor was the purchaser of some of the property of his testator’s estate, and it was held, he was properly chargeable with the sum for which he gave a note. • We théresaid, “ that when an executor purchases a part of his testator-s estate he is, after the expiration of the term of credit, chargeable with the amount as cash in the same manner as if he had collected money or converted property belonging to it.” In King v. Shackleford, 6 Ala. Rep. 423, an executor signed a note payable to himself and his co-executor as.the surety of a third person, and we held, in a suit in equity, by one executor against the other who was the surety, that the latter was not responsible to his co-executor, as the complainant did not pretend he was a creditor of the, estate beyond the assets in his hands. The chief difficulty of allowing a suit against the surety arises from the circumstance, that when the promise made by his principal is considered as made to all the executors, the payment cannot be made so as to discharge the principal debtor from his official obligation. The case of Childress v. Childress, before cited, shows that after the expiration of the credit allowed by the sale, he is chargeable in the same manner as if he had received money, and Edwards v. Crenshaw, 14 Peter’s, 166 shows that a payment by him to his co-executors would not discharge him from the liability to account to those entitled under the will or in course of distribution. On the whole, therefore, though we have had some difficulty in coming to this conclusion, we are of opinion that the plea to which the demurrer was overruled presents a sufficient! bar to the case made by the declaration. 2. With respect to the evidence in support of the plea, we do not see that any question arose as to the identity of one of the plaintiffs as the principal in the note. The proof adduced was certainly competent, whether oral or written, and its sufficiency was for the jury to consider. The objection to the proof of this matter by the admission of two of the plaintiffs on the record, does not seem to be pressed, and therefore is not considered. 3. It is lastly urged, that the judgment is. de bonis propriis, when it should have been de bonis iestatoris. In Thompson v. Start, 1 Taunt. 322, the test of the proper judgment is said [256] to be, whether or not the money if recovered would be assets of the estate. This we think is the true rule, particularly with reference to the modifications which the duties of executors and administrators have undergone by our statutes, though it is elsewhere held, that the party is liable de bonis propriis, whenever he could sue in his own name. [Haller v. Smith, 10 East. 293; Jones v. Jones, 1 Bing. 249; see also, 2 Tidd, 1014. But this at most is a clerical error which, according to repeated decisions of this Court, will not reverse the judgment but will be here corrected. Judgment corrected so as to render costs de bonis testatoris? and affirmed in all other respeets.