Ward v. Yonge

B. F. SAFFOLD, J. The appellants were sued as sureties upon the bond given by John Ward as the administrator of the estate of David Pitts, deceased. The complaint alleges that the plaintiff, Henry A. Yonge, as administrator of Jane Williamson, claims to recover of the defendants the amount of a decree rendered by the probate court on the final settlement of Pitts’ estate, against the administrator, in favor of Jane Williamson. It avers that the said administrator has neglected and refused to pay the sum of money, although assets more than sufficient to pay the debts of the estate and the distributive share came into his hands; and further, that the administrator is dead. This complaint was not assailable by the demurrer on the grounds assigned by the defendants. The judgment against the administrator was a sufficient foundation for a suit on the bond, notwithstanding an execution might issue upon it. The cumulative right to an execution against the sureties, on the return of “ no property found ” to an execution against the administrator, does not take away any right to which the plaintiff was otherwise entitled. There was no necessity of any demand upon the defendants for payment, other than the commencement of the suit. A return of “ no property found ” to an execution against the principal, was not necessary. The liability of the sureties attached whenever the administrator received assets [477] sufficient to pay the decree and not needed to pay debts or other demands having priority; and the right of action accrued on the rendition of the decree. When this was shown, it was not necessary to allege any other, or greater, waste, because it devolved upon the defendants to show a lawful appropriation of them! — Miller v. Gee, 4 Ala. 359; Dean v. Portis, 11 Ala. 104. The demurrer was properly overruled. The cause was tried on the pleas of the general issue, and that the plaintiff was not the administrator of Jane Williamson. The evidence introduced was, the bond of the adminisifator, Ward, his letters of administration, the record of the final settlement and decree, the letters of administration on the estate of Jane Williamson, granted to the plaintiff and dated the same day the suit was commenced, and proof that the said Jane Williamson was, at the time of her death, a resident of Mississippi; and that this decree was the only property left by her in Henry county. The death of the principal obligor, John Ward, before the commencement of the suit, was admitted. Upon this evidence, the court charged the jury that, if they believed the evidence, they must find for the plaintiff. The final settlement shows that, after allowing the administrator all proper credits, there was remaining in his hands a considerable sum of money, which was distributed amongst several distributees, and a decree rendered against the administrator in favor of each for his share. We do not understand the exception taken by the defendants to the rejection of their evidence that a large portion of the decree against the administrator was for slaves. The decree was a money judgment. The .complaint contains a sufficient cause of action, and we do not perceive any deficiency in the testimony to sustain it.. There was no contradictory evidence. It does not appear from the bill of exceptions whether the charge upon the effect of the entire evidence, excepted to, was or was not given at the request of the plaintiff. We must, therefore, presume in favor of the judgment. English’s Ex’r v. McNair’s Adm'rs, 34 Ala. 40. The judgment is affirmed.