Woodall v. Wright

ANDERSON, J. This suit was brought by the plaintiffs against the defendants, as sureties on the administrator’s bond of one, Robert I. Wright, who is not made a party defendant, and was based on certain judgments rendered in the chancery court against him as administrator in May, 1900. Defendants interposed, among others, pleas 8, 9 and 14, and to each of which plaintiff filed demurrers, and the ruling of the trial court in overruling said demurrers is brought here for review. Plea 8, sets up that the estate was declared insolvent, July, 9th, 1900, which was after the rendition of the judgments, and that said claims were not filed as is required by Section 306 of the Code of 1896. The requirements of said section, that all claims must he filed within six months from the declaration of insolvency, applies to judgments rendered before such decree of insolvency against the intestate and not to those judgments rendered against an administrator. — Ried v. Nash, 23 Ala. 738. The demurrer to the plea should have been sustained. Plea No. 9, sets up as a defense the declaration of insolvency subsequent to the rendition of the judgments, and relies on Acts, 1898-99, page 85, which said act is intended to relieve the administrator of any personal liability on judgments obtained before the estate is declared insolvent, after they have been properly certified from the courts where obtained. Such judgments were never binding on the sureties so as to estop them from denying [211] that the administrator had come into assets with which to discharge the indebtedness, and as the administrator is not a party, the plea presents an immaterial issue. Besides, if material, it fails to aver that the judgments were certified as is required by the act and which was essential to relieve the administrator personally. Plea 14 sets up a want of sufficient assets in the hands of the administrator to discharge the judgments. A judgment against a personal representative to enforce a debt or liability of his intestate, is not binding on the sureties on his bond, so as to preclude or estop them from denying that the administrator had come into the possession of assets with which to discharge the indebtedness. Banks v. Speers, 97 Ala. 560. While the sureties have a legal right to plead a want of assets, we think a plea is defective, which avers only a want of sufficient assets, and that the demurrer, for that reason, should have been sustained. For the above mentioned error the judgment is reversed. Reversed and remanded. McClellan, O. J., Tyson and Simpson, J.J., concurring.