Kavanaugh v. Thompson

CHILTON, J. We will examine the errors assigned in their order. 1. There was clearly no error in failing, to have citation served on the wife. Upon the marriage of the ad-ministratrix, the husband becomes administrator in her right for his own safety, it is said, and he takes upon himself all the duties, and is entitled to all the privileges which belonged to the administratrix before the marriage. — 2 Williams on Ex’rs, 633. He was then the proper representative of both. In chancery, it is well settled that process need not be served on the wife, unless the bill seeks to charge her in respect of her separate estate, and she has no such estate in assets as ad-ministratrix. — Daniel’s Ch. Pr. 191; 1 Turn. & R. 96. We think- a similar practice may well obtain in the Orphans’ Court, since service of- the citation -upon the wife would be but mere-matter of form. 2. Although the distributees would- have the right to complain that the court proceeded to render separate judgments ■against the administrators who had entered into a joint bond, we think it very clear the administrators themselves, who made •no objection tó such judgments being rendered separately, instead of jointly against them, cannot-be heard to complain. They have not been injured, because the judgments were rendered against them for less than the court should have awarded, and to entitle the plaintiffs in error to a reversal, they must show both error and injury. It was certainly beneficial to the plaintiffs in error that no judgment was rendered against them for the assets of the -estate in the hands of Connelly. Bush v. Bradford, 15 Ala. Rep. 317. Were the distributees -complaining, then the authorities cited by the counsel for the plaintiffs in error would'apply, for it is settled by them, that when co-administrators enter into a joint bond, they stand as sureties for each other to the distributees, who are entitled to a joint judgment against them. — Little, et al. v. Knox, adm’r 15 Ala. Rep. 576; Little, et al. v. Heard, et ux. 16 ib. 360, and are jointly bound to protect their securities upon such bond, against the acts of either administrator. 3. Upon the trial in the Orphans’ Court, the distributees produced, and read the record of a judgment, rendered in favor of the administrators of said William Lewis deceased^ . against Eli- Lewis, on the 4th Monday in October -1838,-in an [824] action of detinue, brought to recover four slaves named in the pleadings, said judgment being in the usual form, for the recovery of the slaves, if to be had, and if not to be had, then their alternate value, which was assessed by the jury. . Upon ihis judgment it appears execution issued, and was returned by the order of the administrators on the 16th of April 1839. To rid themselves of this charge, the plaintiffs in error offered to show that Eli Lewis had filed a bill in chancery on the 19th April 1834, against the administrators and heirs of said deceased, claiming an undivided half interest in all the property of which the deceased died seized, both real and personal, and offered to read to the court, the transcript of the bill, answers, exhibits and proof taken in the cause, from which transcript it appeared that the said complainant dismissed his bill; and in connection with this, they'also-offered to prove by James W. McClung, who was one of the solicitors of Eli Lewis, the complainant, and a practicing attorney of said court and familiar with the proof and situation of the cause, that he, believing it best for the interest of the estate, advised the parties to make a compromise of a certain character, which he afterwards learned from both the complainant and administrators had been made, but said witness could not remember the terms of thé compromise. The plaintiffs in error also offered to prove by said witness, that he believed said Eli had a fair prospect of recovering half the estate, but as said Eli was largely insolvent, a recovery could not have been of much benefit to his own family, and he therefore thought it best for all parties that the compromise should be made. Kav-anaugh then proposed proviug by other witnesses, that the terms of said compromise were that Eli should dismiss his said chancery suit, and that in consideration thereof, said administrators should abandon all claim to the four slaves, who are named in the above recited judgment, and which were then in the possession of Eli, but which had been returned by the administrators in their inventory as a part of the assets belonging to the estate; also, that they should surrender the value of the hire of said slaves, and acquit said Eli of all debts due from him to said estate. It was further agreed, as a part of said compromise, that the judgment aboye refered to should go for the four slaves in favor of .said administrators for the [825] purpose of protecting said property in the hands of said Eli from liability for his debts. Said Kavanaugh also offered to prove that he afterwards purchased said slaves from Eli Lewis with his individual funds. The court excluded the proof thus proposed to be made, upon the ground that the administrators could not condradict the record by parol evidence. Perhaps such exclusion could not be justified upon the reason assigned by the court, since the effect of the evidence was not to contradict the record of the judgment, but was consistent with it. But we think there is another 'ground which will fully sustain the action of the court. The object of the evidence was to show that although the judgment rendered in favor of the administrators who sued, as such, to recover the slaves, vested the recovery in them as administrators, and made the same assets in their hands, yet there was a trust existing in favor of the said Eli Lewis, which showed that the judgment in fact was not assets. This trust was, that the administrators should hold the recovery in trust for the sole benefit of Lewis to screen the property from his debts. "We are aware of no principle of law which would authorize this, or enforce such trust. It could not be contended that Eli could in equity set up such trust to avoid the satisfaction or collection of the judgment. However fraudulent it might be against his creditors, it is obligatory as between the parties if they choose to insist on it, and as the administrators are entitled to it in auier droit, and as in the event of their going out of office and the appointment of a successor, the judgment would by operation of law, in virtue of his appointment gojto him, the administrators, when the distributees insist on its collection, have no right to release or discharge the party from it, without rendering themselves liable for the amount. They cannot be heard to say any more than Eli Lewis, when sought to be charged with the judgment, we merely agreed to make it assets for the purpose of screening it from Lewis’ creditors, and not for the purpose of distribution. No court will lend its aid thus to consummate or protect a title founded in fraud, but will treat the judgment as valid, arid in good faith the property of the estate. Such doctrine is indispensable to the purity of the law, and is demanded by sound public policy. Since then, the legal title to the slaves, or their alter [826] nate value, is in the administrators as assets, and the alleged trust is void, as contravening public policy, it is very clear the distributees had a right to charge the administrators who refused to enforce the judgment, and that the exclusion of the proof, which could not possibly have affected the result was not erroneous. — Duffee, adm’r v. Buchanan and Wife, 8 Ala. Rep. 27; Williams on Ex’rs 635. These slaves were returned by the administrators as assets belonging to the estate, in the inventory which they filed in the Orphans’ Court. They were in ihe possession of Eli Lewis, and a solemn judgment of the court is shown by which they recovered said property from Lewis, which property they now have in possession. We think, under such circumstances, it would be to introduce a new and very dangerous principle of decision to hold that the administrator may set up in himself as against the estate an adverse title, acquired from one in whose behalf he insists the judgment was a device to defraud creditors. We find no authority to sustain such a position and cannot give it our sanction. 4. In respect to the slave called Little Bill, we regard the decree of the Orphans’ Court clearly defensible. The administrators were guilty of a conversion by permitting him to go into the possession of Kenan, and the recovery in their names against him ascertained the value of the boy — at least, the dis-tributees were willing to take the recovery. The general rule is that the trustee can make no profit to himself out of the trust fund. If he deal in it, or exchange it for other property, it is for the cestuis que trust to elect whether they will hold him bound for the value of the trust effects so disposed of, or will take the property obtained in exchange, or profits of the negotiation. According to this principle, ihe distributees of this estate were not bound to accept the slave Jack, which the administrators received from Blevins in the place of Little Bill, but they could elect to charge the administrators with the value of the latter. This, they did, and in our judgment, the court very properly charged the plaintiffs in error with the amount recovered by them from Kenan as the price of Little Bill. 5. That the distributees at first soughl to charge the ad [827] ministrators with the hire of Jack, and which the administrators resisted, claiming him as their individual property, furnished no ground for refusing them afterwards the permission to elect to hold the plaintiffs in error responsible for Little Bill. It was the duty of the court to protect the interest of the minors in permitting the most advaritagous election to be made. 15 Ala. Rep. 86. The view we take of this case renders it unnecessary to go into the question as to the right of the administrators to compromise doubtful claims, or to dispose of the property of the estate by private arrangement, in the extinguishment of claims against it. 6. It is objected that no guardians acl litem were appointed for the infant distributees. Were they, or any one for theili complaining, this would be erroneous, but for aught that appears the decree may be highly beneficial to them,, and they would be injured by its reversal. The form of the decree in their favor “■ that they recover by their guardians” &c., was correct — See Fagan’s adm’rs, v. Fagan’s distributees, 15 Ala. Rep. 335. We can perceive no error in the record available to the plaintiff in- error, and the decree of the court below must be affirmed. Parsons, J., not sitting.