Gibbs v. Hodge

STONE, J. — The answers set up as a defense in this case, that on the 12th September, 1870, A. J. Hodge, the executor, was removed from the trust or office of executor of Mr. Paylor’s will. A transcript of the order of removal made by the Probate Court of Sumter, duly certified, is found in the record, and noted in the note of the testimony, which proves the truth of this averment in the answers. There is neither averment nor proof of any subsequent appointment of personal representative of Mr. Paylor’s estate. The present a bill was filed September 20th, 1873, more than three years after Hodge’s removal. In fact, all the claims set up in the bill, as judgments against Hodge as executor) except two for small sums, were put in suit after Hodge’s removal, and when there was no personal representative of the estate. Those two suits, for small amounts, although commenced before September 12th, 1870 (the date of removal),' were not put in judgment until afterwards. Whether these two [370] claims are valid judgments against the assets of the estate, we need not decide. They are certainly binding on Hodge. See Code of 1876, §§ 2617, 2622 ; Harbin v. Levi, 6 Ala. 399; Dunham v. Grant, 12 Ala. 105; Watson v. Collins, 37 Ala. 587. The claims put in suit after Hodge’s removal from the trust, derive no support from the judgments rendered, as claims against Paylor’s estate. They stand on the terms of the several contracts, as if no suits had been brought. 2. There is a fatal defect in the present bill. It is a suit for the collection of debts alleged to be due and owing from Paylor’s estate. Whether those claims are justly due and owing, is one of the material, averments of the bill. The judgments rendered against Hodge do not prove their existence, in this suit. On this issue of indebtedness vel non, a personal representative of the estate of Paylor is an indispensable property. The absence of such party is a fatal defect, which the court is bound to notice. No personal representative of Paylor’s estate is brought before the court, for Hodge had long ceased to be such. — Dooley v. Villalonga, 61 Ala. 129; Blackwell v. Blackwell, 33 Ala. 57-61. The chancellor, in his decree, assigned no reason for dismissing the bill. We have seen, above, that the want of a personal representative of Paylor’s estate is fatal to this case, and that we are forced to take notice of it. Whatever may have been the reasons which influenced the chancellor’s mind, we feel bound to affirm his decree on the ground above stated. — Dooley v. Villalonga, supra. 3. We are not prepared to say that an executor, who is sole devisee, can sell the lands devised, in payment of his own debts, and leave the debts of his testator unpaid. Iu this State, lands are charged with the payment of decedents’ debts, as well as personal property. — Code of 1876, §§ 3209, 2252, 2117 ; Jackson v. Robinson, 1 Wend. 136. The creditors may have some remedy for the enforcement of their claims, if they are not barred ; whether through an administrator de bonis non, or in some other form, we think it would be improper for us to intimate. — See Teague v. Corbitt, 57 Ala. 529; Steele v. Steele’s Adm’r, 61 Ala. 138; Scott v. Ware, 61 Ala. 171; Benagh v. Turrentine, 60 Ala. 557. But, inasmuch as this case is not decided by us on the merits, and, under the advice of counsel, the complainants may conceive they still have some mode of redress, we will so far modify the decree of the chancellor as to make it a dismissal without prejudice. With this modification, the decree of the chancellor is affirmed.