Connally's Adm'r v. Kavanaugh

11 Ala. 169

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

GOLDTHWAITE, J.

The defendants resisted the apparent equity of the complainant, on the ground that their intestate, with another person, in 1832, became bound as sureties for her and George Connally for the administration of the estate of her former husband — that they and Connally have received assets of that estate to a large amount— that it remains entirely unsettled with the proper court — and that her present husband, as well as Connally, the co-administrator, and the co-surety, are wholly insolvent. From these facts the defendants insist an equity arises, for them to require, either that that estate shall be settled, or indemnity given before the complainant’s portion of the estate the defendants represent, shall be settled on her. We are not prepared to say, this position would be untenable if the answer was sustained by proofs; but in the condition in which the record is presented, the expression of any opinion is improper, for the reason that the case is not sustained by evidence. If we concede that the insolvency of the administrators upon Lewis’ estate, is a fact which authorizes the present defendants to demand indemnity, for the liability of their intestate on the administration bond, before payment of the complainant’s portion, then it will be apparent the cause rests on this fact of insolvency. In the decision of the Tuscumbia Rail Road Company v. Sherrod, 8 Ala. Rep. 206, we had occasion to review all the cases bearing on the question, how far insolvency would confer jurisdiction on a court of equity, when without this fact it had none; but none of them go so far as to let in the jurisdiction on this account, when there would not otherwise be a failure of justice.

In this cause, the insolvency of one of the administrators is conceded by the bill, as well as asserted by the answer, but as to the other, there is a total absence of proof. ■ If George Connally, the co-administrator of the estate of Lewis is solvent, it is clear the defendants representing his surety, cannot be prejudiced by the insolvency of the complainant’s husband as the same decree which established the indebtedness of the administrators of Lewis’ estate would award execution against the solvent administrator, before any recourse could be had against the defendants representing the surety.

The case failing in this particular, it is unnecessary to examine it farther, as we could render no aid to the party, even if our judgment was, that the answer made out a full de-fence,. or presented such a state of facts as would require a modification of the decree.

Decree affirmed.