Bromberg v. Sands

McCLELLAN, C. J. Luden Nardin by his last will executed February 8, 1888, after making certain specific bequests and devises -to others, devised and bequeathed all the. residue of his estate to his nephews, Tell and John Nardin. Constituting a part of his residuary estate was a claim for bond .199 for $1,000 issued by the county of Mobile for river and harbor improvement, and coupons thereto attached which had been stolen from him a short time before he made his will. He nominated and constituted Henrv C. Lesquereux the executor of his will. Luden having died a few days after the execution of this will, it was duly probated in the probate court of Mobile, the county of testator’s resi-. dence and death, on March 31, 1888, and said Lesquereux was then appointed and qualified as executor. The estate’s claim to said bond was not inventoried nor in anywise taken account of by Lesquereux in his administration, and prior to June 22, 1891, he fully settled his executorship, made final distribution to Tell and John Nardin as residuary legatees, had his accounts audited and passed by the probate court, and a decree therein entered discharging -and acquitting him in all respects as executor. After this, on the date last stated, John Nardin, a resident of New York, departed this life. The defendant, Bromberg, represented the executor throughout the administration of the estate as his attorney, and acting after.the final settlement thereof as attorney for or in behalf of the estate, or Lesquereux as its executor, he collected in-July, 1891, between four and five hundred dollars on said claim in respect of the Mobile county bond No. 199. The estate [415] having been fully settled without taking any account of this claim and the executor having been discharged, he recognized that this money belonged to Tell Nardin and to the estate of John Nardin under the residuary clause of the will, and some years afterwards he paid Tell Nardin his half of it and stated under oath that he owed and was ready to pay the other half “to whoever was the legal representative of John Nardin, deceased.” Lesquereux survived until August 12, 1892, more than a year after defendant collected this money, but it does not appear that he was ever informed of its collection. The probate court of Mobile county appointed B. M. Sands administrator of the estate of John Nardin, deceased, in. September, 1898, and Sands as such administrator brings this suit to recover his intestate’s,share of said fund from said Bromberg. This would seem to be a plain and simple enough case for the plaintiff: the trial court so regarded it and gave him the affirmative charge; but defendant insists that the court below erred in that instruction and also in ninety-odd other particulars on the trial. We do not deem it necessary nor do we propose to enter upon any detailed discussion of these very numerous assignments of error. Many of them were reserved to rulings upon the pleadings; and of them it will suffice to say that none of them were prejudicial to the defendant, since on the pleadings as finally made up and settled he had the opportunity to fully develop and present every defense he wished to bring forward. Three lines of defense were attempted by the defendant, and upon each the the pleadings admitted of and the court, allowed him to fully present his case. These lines were: First, that the fund in his hands did not belong to the estate of John Nardin, deceased; second, that plaintiff .was not the administrator of .the estate of John Nardin; and, third, the statute of limitations. The action is for money had and received to the use of plaintiff. It is an equitable action, and is to be tried upon principles of equity. If defendant has money which in equity and good conscience belongs to the estate of John .Nardin, deceased, the plaintiff, as John Nardin’s personal representative, is entitled to recover [416] it. That the money sued for was received by the defendant as part of the residuary estate of Julien Nardin is not controverted. That all of such residuary estate of Julien Nardin was bequeathed to Tell and John Nardin is not denied. That Tell has received his part of this fund is admitted. Defendant himself admits that the other part of it will ultimately go to- the estate of John Nardin. Why ultimately and not nowt Lueien Nardin’s estate has been fully settled so far as the assets which came into the executor’s hands are concerned, and the executor has been discharged. He has since died himself and his estate has been settled; but if he Avere living, he Avould no longer be the executor. And he would not be entitled to this money individually for he Avas not charged with it on the settlement. This is money belonging to Julien Nardin’s estate AAdiich has been found, so to speak, after his estate has been settled and his executor’s office has ceased. There are no debts or specific legacies to be paid out of it. If there were an administrator de 'bonis non of Julien Nardin’s estate, or if there Avere an executor, all he could do Avith this money Avould be to take it from Bromberg and hand it. to the legal representative of John Nardin. There being no personal representative of Julien Nardin’s estate noAV in existence, and the estate of John Nardin, deceased, being entitled to this fund, this equitable action affords a remedy quite ample and competent to put the fund Avhere it immediately belongs without the ■ circumlocution, delay and expense of another administration of Julien Nardin’s estate to ultimately place the funds in the proper hands. There is no merit in the first attempted defense. As to the defense that plaintiff is not the administrator of John Nardin’s estate: The petition for letters of administration avers among other thing's that proper tv belonging to said estate came into the hands of an attorney in Mobile after the death of John Nardin. This shows property of the estate in the county in which the letters were issued. The appointment of plaintiff as administrator is, therefore, not void on its face, and it can not be attacked collaterally as was' attempted' in this ca:se. — Winter v. London, 99 Ala. 263. [417] It is clear beyond dispute on tbe evidence in this case that demand was made on Bromberg for this money seasonably after it became known to those entitled to it that he had it, that they were not at fault in failing' to come to earlier knowledge of the fact, and that this 'suit was brought as soon as practicable thereafter, clearly before the lapse of any period of limitation. On this state of case the plea of the statute of limitations fails. — Kimbro v. Waller, 21 Ala. 376. Moreover, the defendant has on the hearing of a motion in this case admitted on oath that he owes this money to the legal representative of John Nardin and declared his readiness to pay it. The judgment of the circuit court will be affirmed. Affirmed.