Rambo v. Wyatt's Adm'r

WALKER, J. The question of this appeal is, whether the administration de bonis non of the appellee, who was the plaintiff below, is valid. The solution of this question turns upon the point, whether the administration ivas vacant at the time of the appointment. — Matthews, adm’r, v. Douthitt and Wife, 27 Ala. 273. Of the two representatives first appointed, one was dead, and the other, being the widow of the deceased, had married, and, with her husband, removed from the State. There had never been any settlement of the estate ; and the feme covert adminis-tratrix, in writing, subscribed by her, but not by her husband, resigned the administration. The subsisting administration was, upon these facts, without notice, revoked; and the plaintiff was thereupon appointed administrator de bonis non. This action of the court having occurred before the adoption of the Code, its validity must be tried by the pre-existing law. The death of the administrator terminated his office. The remaining representatives were, a feme covert admin-istratrix, and her husband, who intermarried with her after the commencement of the administration. Excluding from our view the other questions which have been-argued, we proceed to consider whether the written resignation, delivered into the proper office, of the feme covert administratrix alone, not participated in by her husband, terminates the administration of herself and husband. [366] By a statute adopted in 1821, (Clay’s Digest, 222, § 9,) it is enacted, “ that any executor4, executrix, administrator, or administratrix, may, by writing, by him or her subscribed, and delivered into the clerk’s office, resign his or her authority; but, in such cases, he, she, or they, and his, her, or their securities, shall be bound for all the assets or effects which shall not have been duly administered or applied, or shall not be delivered to their successors respectively.” This statute clearly gives to every administrator or administratrix the power to divest him or herself of the trust. It does not admit of an exception from its provisions of any one holding the office by appointment of the court. If a feme, who marries after her qualification, can, during the coverture, be correctly denominated administratrix, she has the power of resignation, conferred by the statute, and existing by virtue of it. An administratrix, after her marriage, is incapable of doing any act of administration, which might be to the prejudice of her husband, without his concurrence. 2 Williams on Executors, ch. 4, 825, 826; Wentworth on Executors, 380; Wankford v. Wankford, 1 Salkeld, 299, 306; Adair v. Shaw, 1 Sch. & Lef. 266; Kavanaugh and Wife v. Thompson, 16 Ala. 817; Pistole v. Street, 5 Por. 64. This incapacity of the wife, and the capacity of the husband, to discharge all the offices of the administration, result from the liability of .the husband for the acts of the wife. It does not result from the cessation of the wife’s character as administratrix. The general remark in Kavanaugh v. Thompson, supra, that the husband “takes upon himself all the duties, and is entitled to all the privileges, which belonged to the administratrix before the marriage,” does not convey the idea, that by the cov-erture the wife has ceased to be administratrix, or that the trust is suspended as to her during the coverture. Some incapacity is imposed upon her, while she is sub potestate viri, but she still remains administratrix. She is a necessary party in all suits for and against the administration. She is liable, after the termination of the cov-erture, for the devastavits committed by her husband during the coverture; and after the termination of the coverture [367] sbie has the same power and authority, which she had before its commencement. — 2 "Williams on Executors, 828, 1564; Adair v. Shaw, supra. These considerations show, that an administratrix retains her character of administratrix notwithstanding her marriage, and thus comes within the letter of the statute. . In an old case of Der Rosa v. De Pinna, reported in a nóte in 6 Eng. Ecc. R. 167, a feme covert, to whom administration had béen decreed, was not allowed, on an appeal from the decree, to renounce the administration, to the prejudice of her husband who objected to it. By the English ecclesiastical law, there was not an unqualified right of renunciation or resignation of an administration. 1 Williams on Ex’rs, 484; McGowan v. Ward, 3 Yerger, 375; Washington v. Blunt, 8 Iredell’s Equity, 253. The English .ecclesiastical court could, therefore, exercise its power of allowing a renunciation by a feme covert in reference to the husband’s wishes. The law here is different. There is here a right to resign. There is no qualification of that right, and the court is not clothed with authority to make its exercise dependent upon the husband’s will. It would be inconsistent with the spirit of the law, which prescribes the incapacity of a feme covert, to imply the disability of a married woman to resign her administration. The protection of the wife is one of the objects of the law in the imposition of her disabilities. The resignation of an administration is a means by which a wife could protect herself against irreparable.loss by the misconduct of a husband, inducted into the administration by his intermarriage with her. To take away from her the right of resignation, which the statute gives, would, therefore, deprive her of a means of self-protection given, by the statute. Her protection would not be consulted by implying a disability in her to resign. The wife’s safety and protection will be less endangered by allowing her the exercise of her will in resigning an administration, than by leaving her without the means of ending her liability for her husband’s misconduct. Eor the reasons above set forth, we decide, that a feme covert administratrix has a right to resign her administra [368] tion. Her resignation must, of necessity, terminate the administration of her husband, which exists only by virtue of her administration. The verdict in this case is substantially correct, and proper in form, as a verdict in the action of detinue. The judgment, however, is not the appropriate one. The error in it is merely clerical, and must here be corrected. The judgment, being thus corrected, is affirmed. — See Code, § 3037; Jackson v. Shipman, 28 Ala. 488.