Williams v. State ex rel. Flippin

Cooper, J., delivered the opinion of the court. John P. Flippin died in December, 1877, and in January, 1878, administration upon his estate was granted to Samuel F. Flippin, who qualified and gave bond with the appellants as his sureties. In November, 1878, Samuel F. Flippin died intestate, and administration upon his estate was granted to one Williams, who, as such administrator, filed the final account of his intestate as administrator of the estate of John P. Flippin. This final account as passed showed a balance of $1241.59 due by the deceased administrator to the estate of his intestate, and on the 15th of September, 1883, a decree was rendered thereon against the administrator of the deceased administrator for that sum. Administration de bonis non of the estate of John P. Flippin was granted to Mrs. Mary E. Flippin, and, the estate having been finally settled, the present suit is brought by the distributees of John P. Flippin against the sureties upon the bond of Samuel F. Flippin to recover the amount of the said decree, less the sum of $562.74 paid by the administrator of Samuel F. upon the same, the estate of Samuel F. having been fully administered as an insolvent estate. This suit was brought on the 11th of September, 1888, more than six years after the death of Samuel F. Flippin, but less than six years from the date of the decree above referred to. The defendants pleaded the statute of limitations of six years after the death of the administrator and before suit brought, in bar thereof, and the action of the court below in disallowing this plea presents the first ground of the errors assigned. It is urged by the appellants that the death of the administrator terminated the trust for the faithful administration of which they [687] had become bound, and that, since any devastavit by their principal must have preceded this event, the statute of limitations then began to run, and by the lapse of the statutory period between the death of the administrator and the institution of this suit they are discharged of all liability as sureties on his bond. To this contention on the part of the sureties it is sufficient to reply that, though the administrator may die, the administration committed to his hands continues in the court until closed by his personal representative in the manner directed by law. The death of the administrator is not a devastavit of the estate, and confers no right of action either upon the administrator de bonis non of the original intestate or upon his distributees. It is the decree of the court having administration of the estate rendered upon the final account of the original administrator made by his administrator, which fixes the liability of the deceased administrator, and from its date the statute of limitations begins to run. Nunnery v. Day, 64 Miss. 457 ; Cooper v. Cooper, 61 Ib. 676. The defendants objected to the introduction in evidence against them of the decree of September 15, 1883, rendered upon the final account of Samuel F. Flippin as administrator, by his administrator Williams, on the ground that it was res inter alios acta, and therefore incompetent. It is conceded by counsel that since the decision of Lipscomb v. Postell, 38 Miss. 476, it has uniformly been held in this state that an account of the administrator in the course of administration, or a judgment or decree against him, is admissible in evidence against the sureties, and makes a prima fade case to be rebutted by them. The contention is that a different rule should apply to an account rendered by the personal representative of the deceased administrator, for whom and for whose acts the sureties have not bound themselves. Counsel rely principally upon the decisions of the supreme court of Alabama, notably that of Martin v. Ellerbe, 70 Ala. 334. In that state it seems to be settled, that a decree in the administration of an estate rendered upon the final account of an administrator by his administrator, cannot be given in evidence in a suit against the sui’eties on the administrator’s bond, but that a decree made upon the account of the principal ad [688] ministrator is conclusive against his sureties. We cannot concur in the correctness of the views entertained by the Alabama court. We can perceive no well-founded distinction between one decree and the other when both are made by the court having jurisdiction of the administration, and in the course thereof. The condition of the bond of the administrator is, that he shall “ perform the duties required of him by law,” which duties consist in the due administration of the estate, by the payment of debts and the distribution of the remainder among those entitled to receive it. There is much confusion and diversity, both of argument and decision, upon the question of the competency and effect in evidence of a judgment or decree against the principal, when offered against the sureties upon his administration bond. In Alabama such judgment or decree is conclusive; but a decree upon an account rendered by the administrator of the administrator is not evidence at all. In North Carolina a judgment against the administrator is not evidence at all against the sureties. McKellar v. Borrell, 4 Hawks, 34. In Virginia, South Carolina, Georgia, New York, and Mississippi, the argument is against the competency of the evidence, but the decisions are that it is competent but not conclusive evidence. Mumford v. Overseers, 2 Rand. 315; Craddock v. Turner, 6 Leigh, 116 ; Lyles v. Caldwell, 3 McCord, 225; Ordinary v. Condy, 2 Hill. (S. C.) 313 : Bryant v. Owen, 1 Kelly, 355; Douglass v. Howland, 24 Wend. 35; Lipscomb v. Postell, 38 Miss. 476. As we have observed, we are unable to adopt the distinction of the supreme court of Alabama, by which a difference is made between the decree against the administrator on an account rendered by him and a decree rendered against- the estate of such administrator upon his final account rendered by his administrator. Each is a decree in the administration of the estate; each is conclusive against the principal in the bond or his personal representative, and ■ each is upon an account filed in the administration of the estate by the first administrator, one being rendered'by him in person and the other by his personal representative for Mm. It is to be remembered that the statute provides for both accounts as a part of the lawful administration of the estate, and it is for that [689] that the sureties have bound themselves. Their obligation is that the administrator shall account for and pay over the estate committed to his charge. “ The decree is evidence that he has been called upon and has not performed this obligation, and thus proves the breach assigned.” Lyles v. Caldwell, 3 McCord, 225. The appellees are not chargeable with any misapplication by the administrator of the estate of Samuel Flippin of the assets of his estate; they had no control over the same, and could not have prevented the payment to Powell Flippin, who, it is conceded, was not entitled to receive anything until the debts of Samuel should have been finally paid. But this was a mere wasting of the estate of Samuel Flippin, and for that his administrator, and not appel-lees, must respond. The decree is affirmed.