Spear v. Banks

HARALSON, J. 1. The evidence in this case shows, that the final settlement of the administrator related to no other property except to the rents of the two lots of land, Nos. 7 and 8 in the town of Jasper — which the widow and heirs at law of-M. D. Burchfield,deceased, who’ owned the property at his death had sold and conveyed, with covenants of warranty to Wm. Banks, on the 2d of July, 1888. S. It. Burchfield, one of the children and heirs at law, was, at the time of said sale of said lots to said Banks, the administrator in chief of his father’s estate, and he individually joined in said conveyance ; each of the heirs receiving from said Banks, as his share of the purchase money arising from the sale of said lands by them to him, the sum of $500. The settlement was a final one of the estate of said deceased by Spear, as administrator de bonis non of said estate, and it does not appear, that the deceased owned any other property at his death except the two lots of land referred to and a small amount of personal property. It does reasonably appear, that this was all the land he owned at his death, and it is certain, that the rents therefrom constituted the entire estate which entered into said final settlement and distribution. That Wm. Banks became the entire and absolute owner of these lots of land from the 2d day of July, 1888 — the date of his purchase of them — under and by virtue of his deed of that date — • more than three years before Spear was appointed administrator de bonis non of the estate of the deceased— was not questioned, and that these lots themselves had anything to do with the settlement and distribution is [234] not pretended. It does appear that Spear, after he became the administrator of said estate, under his statutory right to claim the land for the purposes of administration in the payment of debts, and on the pretense of there being debts owing by the estate, sued Banks in an action of ejectment and recovered the property from him, and afterwards rented them out. If not needed for the purpose of paying debts of the estate, his right of possession, of course, failed. — Banks v. Spear, 97 Ala. 560. The Code, section 211, provides that “Any person interested may appear and contest .any item of the account,” etc., and section 229 provides, that on final settlement of an estate, the court may make such orders of distribution as are necessary..Jit was early decided in "this court, that the assignee of an integral or entire share of an estate is entitled, on the final settlement of an administration in the orphans' (now probate) court, to a decree in his own name for the distributive share assigned to him, which doctrine seems to have been since adhered to. — Graham v. Abercrombie, 8 Ala. 105; Smith v. Hall, 20 Ala. 777; Simmons v. Knight, 35 Ala. 105; Vincent v. Daniel, 59 Ala. 602, 606. Banks in this case, as appears from his petition, was entitled, not only to an integral share in the estate distributed,'but to the entire shares of all the distributees; or, in other words, that he was the owner of the entire fund to be distributed, as the assignee thereof of all the distributees of the estate. The court, therefore, committed no error in admitting him as a party to said final settlement, and in decreeing in his favor for the entire fund to be distributed, if the proofs showed he was entitled thereto'. The motion to strike the petition and the demurrers thereto were properly overruled. 2. There was no error in the ruling of the court denying to S. R. and Nathaniel Burchfield, a distributive share each, in the fund remaining in the hands of the administrator for distribution. This fund having arisen from the property they had sold to Banks, and which he owned under their deed to him, joined in by the other distributees, it is difficult to see, and it has not been [235] shown, how they had, or were entitled to any interest in it. 3. It is equally difficult to understand on what principle, S. R. Burchfield can be entitled to the $500 he says he paid out for the estate, and for which he claims re-imbursement out of this fund. The proof shows, that at the time his intestate died, there was pending in the circuit court of Walker county, a suit against him by SolOmon & Levi, which was revived against said S. R. Burchfield as administrator in chief, in Avhich case judgment Avas obtained against him as such administrator, for $220 and costs, and that tAvo other judgments Avere, by I-Iayes & Gaines, duly obtained in said circuit court against him as such administrator, aggregating $125, on notes executed to plaintiffs by said intestate; that afterwards, executions issued on these judgments against said administrator, and Avere returned no property found, and thereupon, suits AArere brought against the sureties on the administration bond of said S. R. Burchfield by the plaintiffs in said judgments, alleging a devastavit by him as administrator, in that he had received goods and chattels of the value of $1,000 belonging to the estate of his said intestate, which he as administrator had Avasted, and judgments were obtained against the defendants in said suits — one for $299.50 and the other for $140.70, including the principal and' accrued interest on said judgments. These facts we held, in another suit between these parties, in respect to an application of said Spear as administrator to have these lots of lands sold to pay debts of his intestate, Avere conclusive against said administrator and the sureties on his administration bond, of a devastavit by the administration. — Banks v. Spears, 103 Ala. 436, and authorities there cited. Now, the proof shows, that the judgment obtained by B..M. Long against Spear as administrator cle bonis non of said estate was, for value, transferred to said Banks and was OAvned by him. This left but two other debts against said estate, namely, the judgments in favor of Solomon & Levi and Hayes & Gaines, and Spear swore that these were all the debts that had been presented against said estate. [236] These two judgments, to recover which the sureties of said S. R. Burchfield had been sued as for a devastavit of their principal, and in which suits, judgments were obtained against them, were, after the latter judgments were obtained, as the proof shows, paid by said sureties, and to indemnify them, said S. R. Burchfield gave them a mortgage on some lands of his, and after said- judgment in ejectment by said Spear, as administrator, for the two lots sold to Banks by the heirs and distributees of their deceased owner, had been recovered against said Banks, the said S. R. Burchfield paid his sureties for the amounts they had been compelled to pay for him., When these two judgments were in this way paid by the sureties of S. R. Burchfield, there remained no indebtedness of said estate. It had all been paid, and said lots, sold and conveyed to Banks by all' the distributees of the estate of said M. D. Burchfield, became his, by virtue of said conveyance, disembarrassed by any resort to- them thereafter, by the administrator to pay debts. In paying off those judgments, S. R. Burchfield was merely replacing money which he had wasted or converted to his own use, and which it was his legal obligation to restore, leaving his intestate’s estate just where it would have stood in the beginning, if he had not wasted its assets, b.ut had applied them in payment of said debts. In refunding-said money to his sureties, therefore, he was out nothing, and no one owed him anything for what he did. How is it then, he can claim of property belonging to Banks, the |500 he wasted and afterwards restored? Much more, how can he claim this amount out of rents of property he had sold and conveyed to Banks with covenants of warranty as to title — all the rents having accrued and been collected since he conveyed the property to him ? There is wanting every element of merit in the claim, and the court committed no error in disallowing it. Finding no error in the proceedings below, the decree of the probate court is affirmed. Affirmed.