Jones v. Brevard

BEICKELL, C. J.— 1. The general rule that distributees or next of kin can maintain no suit at law or in equity, for the mere purposes of collecting and distributing the assets, until letters of administration have been duly granted upon the estate of the deceased, has been accepted íd this State, with a material modification. When an estate is entirely free from debt—when it appears affirmatively, that if there was an administrator, the only duty devolving on him, would be distribution, courts of equity will dispense with an administration, and proceed directly at the instance of a distributee, to decree a recovery and distribution of the assets.—Fretwell v. McLemore, 52 Ala. 134. The mother of the intestate of the appellant, entitled to a legacy under the will of Ephraim A. Brevard, died intestate, a married woman in 1851, and of her estate there is no administration.. If any debts existed against her, and her coverture, with its consequent disability to contract, raises a presumption against the existence of any, the lapse of time would have barred their recovery, at the filing of this bill, twenty-four years after her death. It, therefore, affirmatively appears,, that an administration on her estate, for the recovery of her legacy, would have been a useless ceremony, involving only a diminution of the assets by its expenses. The former decisions of this court authorized a suit by the intestate in her life-time, or by her personal representative after her death, for the recovery and distribution of the legacy to her mother. The co-distributees of the mother, would have-been necessary parties to the suit, if it had not been consented by the defendants, that they need not be joined as-parties. 2. The appellees, foreign executors, are not ordinarily suable in the courts of this State, but they have consented to the suit, and without objection, submitted to the jurisdiction of the court. They have a fund in this State, derived from an administration of assets here, a large part of which has been distributed to legatees resident here. The sisters of the intestate of the appellant have received the shares of’ this fund, to which as distributees of the estate of their mother, they are entitled; and the object of the bill is the recovery of the share to which the intestate was entitled. The defence against a recovery, is, that the appellees as-executors, have a subsisting deci’ee against the appellant-individually, for a sum larger than the share of the intestate ; and it is insisted that a presumption arises that he has-paid to himself as administrator a sufficiency of this sum to503 satisfy the share of his intestate, Avhich it is his duty to collect. The principle invoked is, “ that Avhere a debt and credit—a right to demand, and an obligation to pay— co-exist, even for a moment in the same person, the debt is extinguished by presumption of its payment.” But there is no right, legal or equitable, in the appellant to demand or receive payment of the decree against himself. That decree is in favor of the appellees, and they alone have the right to demand and receive payment of it. The obligation of the appellant to pay, is not to his intestate, or to any of the cestuis que trust of the appellees, but to the appellees alone. The presumption does not therefore obtain, the facts on which it is founded do not exist, and there is no room or reason for its application.— Whitworth v. Oliver, 39 Ala. 287; Ragland v. Calhoun, 36 Ala. 606. 3. Courts of equity put the same construction on the statutes of set-off, Avhich courts of laAV adopt. If there is not an equity going beyond the statutes, mutual debts only are available as set-offs, and the individual debt of an administrator, is not available as a set-off to a demand due him in his representative capacity. 4. It is not in the present suit a fact of importance whether there are debts existing against the intestate of the appellant or not; though the evidence of their existence found in the record, seems full and satisfactory. The right of the appellant to recover does not depend on that fact, but on the right of his intestate, which is not controverted. The chancellor erred in dismissing the bill, and the decree must be reversed, and the cause remanded. Stone, J., not sitting.