Wagner v. Chenault

GOLDTHWAITE, J. — We are inclined to think this declaration must be considered as presenting a substantial cause of action, though it certainly is defective in clearness* as to the statement of the plaintiff’s title. The note is payable to Gibson, administrator ex officio of the estate of Wagner, deceased, and if the suit was by him in his representative character, no ■proferí of his letters of administration would be necessary, or could be required, as the defendants by their contract have ad [679] mitted him to possess that character. [Caller v. Dade,Minor, 20; Harbin v. Levi, 6 Ala. Rep. 399.] The note as an admission shows also, that he was administrator ex officio, and such an administration by our statutes can only be imposed on a sheriff or coroner, and ceases by the terms of the act, with the official term of the individual upon whom it is imposed. [Clay’s Dig. 222, § 10.] It is alledgcd, that the official term of Gibson had expired according to law, and that the plaintiff was duly appointed administrator ex officio de bonis non of the same estaet. This, in connection with the description at the commencement of the declaration, that he is sheriff of St. Clair county, is sufficient to show, that he is administrator by virtue of his office as sheriff, and that he has lawfully succeeded Gibson in that function. This brings the declaration within repeated decisions of this Court, that where a note or contract is made with one as administrator, it passes by operation of law to'a subsequent administrator. [Allen v. Boykin, 206; King v. Green, 2 Stew. 133; King v. Griffin, 6 Ala. Rep. 387; Harbin v. Levi, Ib. 399; Green v. Foley, 2 S. & P. 450.] The view we have taken disposes of the case, as it does not seem to be seriously urged, that the Court should of its own mere motion, inspect the letters of administration. Judgment affirmed.