Searcy v. Holmes

PETEES, J. There is but a single question raised on this record. This involves the construction of section 2077 of the Eevised Code, governing the security to be taken on sales of the personal property of decedents by the administrators of their estates. The language of the statute referred to is as follows: “ When the sale is on credit, notes or bonds, with at least two sufficient securities, must [228] be taken by tbe executor or administrator,” — Bev. Code, § 2077. In this case, it appears that tbe appellees were removed as the legal personal representatives of Bryant Holmes, deceased, and the appellant, Searcy, was appointed administrator de bonis non of said estate, to succeed them. And in August, 1869, said appelleés proceeded to make final settlement of their administration of said estate, in the probate court of Henry county. On this settlement, the said appellees asked a credit for the amounts of two promissory notes taken by them in the course of their administration of said estate, on the sale of the personal property of said deceased. Copies of these notes are given below, as follows: “ $109 00. — Twelve months after date, we, or either of us, promise to pay Lewis H. Holmes, administrator of Bryant Holmes, deceased, or bearer, one hundred and nine dollars, for value received. February 8, 1868. (Signed) L. G. Calhoun, Thomas Craddock, Frederick Carter.” “ $383 85. — Twelve months after date, we, or either of us, promise to pay M. E. and L. H. Holmes, administrators of Bryant Holmes, deceased, or bearer, the sum of three hundred and thirty-three dollars and eighty-five cents, for value received. (Signed) W. J. Stanford, W. H. Hardwick, M. K. Wood.” To the allowance of these notes “ as a credit to said administrators on said settlement, the administrator de bonis non ” and guardian ad litem made objection in writing, “because said notes were given for personal property of said estate, sold by said administrators, who failed to take two good and sufficient securities upon said notes, as required by law.” And thereupon they moved the court to reject these notes and exclude them as credits to said representatives. Upon this objection issue was taken. And the evidence on the part of the appellees in this court, showed that Hardwick, Wood, Craddock, and Carter, the [229] sureties on said notes, were of good reputation as debt paying men, and that the witnesses would have credited them for the amounts of said notes in the transaction of their own affairs, at the date of said notes; that they, said witnesses, thought them good. It was also shown that said Lewis H. Holmes thought said notes good when he took them, but he did not ask the sureties what they were worth, or how much property they had, but he knew that they were generally represented as responsible, and he made no inquiry about them. It was also proven that all of said sureties had gone into bankruptcy, except Wood, and that Stanford had likewise become a bankrupt. The contestants then proved that at the date of said notes, none of said sureties owned or possessed as much property, real or personal, as was exempt from levy and sale under execution by the laws of the State then in force; that no money could at that time have been collected out of them by legal process. This was in substance all the testimony offered on either side. There was no proof that the notes were really insolvent, or that any attempt had been made to collect them and that such attempt had failed. Upon this evidence, the court below overruled the objection, and allowed the credit as asked. To this the administrator de bonis non and said guardian ad litem excepted. It is now insisted that the court below erred in this decision. Promissory notes or bonds taken by the administrator in chief, on the sale of the personal estate of the deceased, are assets of such estate, and if not collected, they pass to the administrator de bonis non, and vest in him. — Rev. Code, §§ 2233, 2078. More than twenty years ago, this court, after a careful examination of the authorities upon the measure of diligence required of administrators in the performance of their duties, under a statute quite similar in language to that above'quoted, laid it down as a proper rule, that “ if an administrator, or any other trustee, acts within the scope and on the line of his duty, and exercises good faith and ordinary diligence in regard to the property entrusted to his care, he is not responsible, although loss befall the estate by the insolvency of those who may be [230] indebted to it, or who may have possession of the property belonging to it.” — Dean and Wife v. Rathbone, Adm’r, 15 Ala. 328, 334; Stewart’s Administrator v. Stewart’s Heirs, 31 Ala. 207, 316. The words of the statute must be construed in reference to these decisions, and so construed, they require of the administrator to show that he acted with ordinary prudence, and in good faith. Here the proof does not show that he acted otherwise, or that the debts evidenced by the notes mentioned have been lost to the estate, or that they will be so lost. The onus is on the administrator de bonis non to do this, before the adminis^ trator in chief can be charged.— Wilkinson v. Hunter, 37 Ala. 269; Strong v. Wilkinson, 14 Miss. 116; Thomas v. White, 3 Litt. 177; Whitted v. Webb, 2 Dev. & Batt. Ch. R. 442; Deas v. Spann, 1 Harp. Ch. R. 176; vide Willis v. Willis, 16 Ala. 652. Without a more careful criticism of the above cited statute, we put the decision of this case upon the grounds that the proof does not show that the want of diligence alleged has terminated in the loss of the debts secured by the notes, or that this must necessarily happen. The judgment of the court below is affirmed, at appellant’s costs in this court and in the court below.