Hicks v. Barrett

40 Ala. 291

Opinion

A. J. WALKEB, C. J.

Section 1938 of the Code does not, in our opinion, contemplate a suit by an administrator as the representative of an estate. It^imposes upon the administrator a trust separate and distinct from the administration. The trust is not for the benefit of the estate, but of the widow, children, or next of kin of the deceased. The administrator fills this trust, but he does not do it in the capacity of representative of the estate. It is altogether distinct from the administration, notwithstanding it is filled by the administrator. No judgment for costs, in a suit under that section, could properly be rendered, to be levied de bonis intestatis; and the court erred in rendering such a judgment against the administrator of Lankford’s estate. This error is amendable, and will be considered as amended. — Stuart v. Hood, 10 Ala. 600; Kennedy v. Young, 26 Ala. 563; Savage v. Walsh, 26 Ala. 619. The judgment is properly de bonis propriis.— Williams v. Hinkle, 15 Ala. 713. There being no liability on the estate for the costs, the surety on the administration bond is obviously not liable for a failure of the administrator to appropriate the assets to the payment of it.

Reversed and remanded.

Eyed, J., not sitting.