Ashurst's Adm'r v. Ashurst's Heirs

COLLIER, C. J. 1. An administrator has no authority to purchase of the widow her interest in the real estate of her husband, his intestate. His ordinary powers make him the-representative in all matters in which the personal estate is concerned, of the person of the intestate, and he may disincumber the realty by discharging liens which- the deceased has himself created ; as the payment of mortgages, &c. But an incumbrance which the law originates upon the death of the intestate, cannot be removed at his mere- volition by an application of the personal assets. To this latter category belongs the right of the widow to be endowed of the lands of which her husband was seized during his life. It may be, that a court of chancery may invest an administrator with [785] such a power, where it shall be made apparent that it will be beneficial to the interests of the estate. The fact that the purchasers of the realty of the intestate at a sale under a decree of the orphans’ court, supposed that they acquired a title free from the widow’s claim to dower, cannot legalize a previous purchase of that claim by the administrator. It is not competent for that court, under its restricted powers, to confer such ah authority, and being exercised by the administrator, its subsequent sanction could not validate it. Whether, upon proof that the estate was really benefited by the extinguishment of the right of dower, a court of chancery would allow the administrator to retain what he had advanced, is an inquiry which may perhaps, in a proper case, be deserving of consideration. But the orphans’ court possesses no such authority. 2. The sale of the land to Taylor by the administrator at private sale, seems to be wholly unconnected with the sale which was subsequently made under the decree of the orphans’ court. It is not questioned that the private sale was merely void — being such as an administrator could not make. The payment, then, of a part of the stipulated price, cannot be regarded as so much money in the hands of the administrator, with which he can be charged by the orphans’ court in the settlement of his accounts. It may be conceded, as we incline to think that the administrator cannot hold this money for his individual benefit, yet the objection to the jurisdiction of the orphans’ court is not removed. That tribunal cannot look beyond his representative character, and hold him accountable as an individual merely, without reference to the trust it conferred upon him. In Smith’s Heirs v. Smith’s Adm’rs, at this term, we say, if an administrator receive money or property belonging to the estate he represents, to which he is not entitled in his representative character, although he cannot hold it against the party legally entitled, yet the orphans’ court cannot take it into the account, and render a decree against him therefor on the settlement of the administration. A court of law, proceeding according to the ordinary forms, or a court of chancery may hold him accountable, and render complete justice. Upon [786] the point we are considering, this case is conclusive of the case at bar; and it follows that the administrator should not have been charged with the money received of Taylor on the private sale of the land. 3. It cannot be inferred from any thing in the record, that the charge made by the administrator of seven and a half per cent, upon his account for receipts and disbursements should have been allowed, or that the orphans’ court did not rightly reduce his claim for compensation. We will not say that there are not cases in which an executor or administrator should not be allowed so much; brft as the demand is be-' yond the ordinary charge, the proof should be satisfactory and convincing to induce its allowance. As to the rule of compensation, see 2 Kent’s Com. 420, note; 10 Ala. Rep. 900, 966. It is insisted, that instead of remanding the cause to correct the error we have indicated, a decree should be here rendered, abating from the shares of the distributees, pro rata. We see no objection to this course, as it is our duty upon reversing a judgment or decree to make such disposition of the case as the primary court should have done, where the record is in a condition to act understandingly, and without prejudice to the parties’ rights. Here, specific sums are directed to be paid to the several distributees, and the cause may therefore be definitively disposed of. The decree is reversed, •and here rendered abating from the share of each distributee who received the benefit of it, pro rata, the amount for which the administrator was charged by the orphans’ court, •as money received by Taylor on his purchase at private sale, of a part of the lands of the intestate’s estate.