Wright v. Watson

THOEINGTON, J. Section 2098 of the Code of 1886 is the embodiment of sections 2439 and 2440 of the Code of 1876, with the superadded power in the administrator to sell the crop at private sale, either in or out of the State; and this change does not affect the question to be considered in this case. This court, construing the two original sections above referred to, held that they did not impose the absolute duty on an administrator to complete and gather a crop left planted by his intestate, and unfinished at the latter’s death, but that it is optional with the administrator to do so or not; and that, if the administrator fails to assert this statutory right and option, the crop, when conrpleted and gathered by the heir or widow, is not assets of the estate, for the reason that it was not made “under the provisions of section 2439 of the Code.” — Blair v. Murphree, Adm’r, 81 Ala. 454; Marx v. Nelms, 95 Ala. 304. We add, however, to what is said on this subject in the foregoing decisions, that the option or élection thus conferred on the personal representative is not an arbitrary one, to be influenced by any considerations of personal preference or convenience on his part. Manifestly, the policy of the statute is that an unfinished crop shall be completed by the personal representative if the interests of the estate will be best conserved by that course, and the determination of that fact will depend upon the state and character of the crop, the weather conditions, the resources of the estate, and all other matters which enter into and control the cultivation and harvesting of crops; and an election to abandon a crop, when reasonable care and foresight would have required its cultivation, might render the personal representative liable as for a devastavit, while a wanton or reckless election, such as no man of ordinary care and prudence in the management of his own business would make, to cultivate the unfinished or groiving croj>, might deprive such representative of the right to be credited in his accounts for the loss incurred in the undertaking. Any election or option, however, made by the personal representative pursuant to the statute wiil furnish [539] protection to liim if it be such as would have been exercised by a man of ordinary care and prudence in the management of his own affairs. According to the proof in this case, appellee’s intestate died in April, 1890, after having planted the crop, and when, as matter of common knowledge, the crop must have been in the earliest stages of growth. The administrator (appel-lee) asserted no authority over the crop, did nothing towards cultivating or gathering it, but that was all done by the son and only heir and distributee of appellee’s intestate, at his own expense. Under these circumstances, and following the decisions above cited, we must hold that appellee, as such administrator, having failed to comply with the statute, thereby made his election not to convert the crop into assets of the estate pursuant to the statute, and, inasmuch as it was cultivated and gathered by the heir at his own expense, it did not become assets of the estate of appellee’s intestate, but Avas the property of the heir. What was intimated and foreshadowed in the decision in Blair v. Murphree, Admr., supra, we now decide, viz: that the right in the personal representative at the common law to claim the growing crop against the heir, as emblements and assets of the estate, is incompatible with the option the statute (Code, § 2098) gives such personal representative to complete and gather the crop, and thus make it assets of the estate; and, speaking without any reference to questions between the heir and the widow in the exercise of her quarantine or exemption rights, or of the rights of lien creditors of the intestate, the growing crop at the death of the intestate passes to the heir, subject to the administrator’s statutory authority to convert it into -assets of the estate by the exercise of his election pursuant to the statute. It follows that -when the crop was levied on and sold under appellant’s attachment it was not assets of the estate of appellee’s intestate, but the property of the heir, John H. Childers, and therefore subject to levy and sale under the attachment against him. It results that such sale was not a conversion by appellant of property belonging to the estate of appellee’s intestate, and that the general charge asked by appellant should have been given. It is unnecessary to notice the other assignments of error. The judgment of the Circuit Court must be reversed, and the cause remanded. Beversed and remanded.