Jones v. Ritter's Adm'r

56 Ala. 270

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

MANNING, J.

Appellant, Jones, was a surety on the bond of one Thomas J. Orme, for the faithful discharge of the duties of the latter as general administrator of Montgomery county. The appointment of Orme to this office was made in 1856, and the bond was then executed, with a penalty of $50,000. On the 3d of October, 1857, on his application to be appointed administrator of the estate of Joseph Ritter, deceased, the court, reciting that he had previously been appointed general administrator for the county, and- had given bond as such, aud taken the office, ordered “that special letters of administration on the estate of Joseph Ritter, deceased, issue to him, the said Orme,” and that certain designated persons be appointed appraisers, and “report their proceedings to the court within sixty days, * * * and that the administrator return an inventory to this court within sixty days.” Orme proceeded thereupon to act as administrator in chief of Ritter’s estate.

At a special term of the court, held May 27th, 1859, as is recited in the record, “came Thomas J. Orme, county administrator for Montgomery county, and renewed his bond in the sum of $75,000, with Jane Orme, John W. Orme, Harriet Orme, Anna Eloyd, John A. Eloyd, and R. E. Taylor, as his sureties; which was approved, and ordered recorded, and [that | the securities in the former bond be released from all liability from and after this date.”

December 17th, 1858, Orme filed his petition as administrator of Joseph Ritter, for a sale of two lots of land of the estate of Ritter, to pay debts, and with it a statement of the debts to the amount of $319.36, which considerably exceeded the appraised value and proceeds of the sales of the personal estate; and under proceedings which seem to have been regularly conducted, and in pursuance of an order of court, he sold the lots, and the court confirmed the sale. Being cited to make a settlement of his accounts, he did so in February, 1866; when it was ascertained and decreed, that he had in his hands moneys of said estate to the amount of $1,794.79. In 1870, said Orme not having obeyed the orders of the court to make a final settlement, proceedings were instituted for his removal, and he was removed from the administratorship of Ritter’s estate, August 6th, and on the 22d of same month, appellee, Schuessler, was appointed administrator de bonis non.

A final decree was rendered, October ! 0, 1870, against Orme, on a settlement of his accounts, upon a statement and auditing of them by the Probate Court, by which he was required to pay, as the sum due from him, $2,896.26 to said Schuessler, the administrator de bonis non. For the recovery of this sum, with interest, the suit in the Circuit < )ourt, now by this appeal before us, was brought by Schuessler against appellant, Jason Jones, as on the bond of Orme made in 1856. Fourteen pleas were filed for defendant in the Circuit Court, and demurrers to most of them having been sustained, seven or more other pleas'were then offered by him; which the court refused him leave to file, and defendant excepted. The trial was had on the 1st, 2d, 4th, 5th, 8th, and 12th pleas, filed on behalf of defendant. By the 1st plea, he denied that the condition of the bond had been broken. By the 2d, he denied that any such decree as that set forth in the complaint had been rendered by the Probate Court. By the 4th, he averred that, upon application of the sureties, or of one of the sureties to the bond sued on, Orme had been required by the Probate Court to execute, and on the 27th of May, 1857, did execute-another bond for the faithful discharge of his duties as general administrator of Montgomery county, with other sureties, and in the sum of $75,000, which bond was approved by the court; and that it thereupon, by its order, discharged the sureties upon the first bond from ail liability thereon after that day, and that the breaches alleged in the complaint had all taken place afterwards, if at all. By the 5th plea, defendant alleged that, if any such decree as that mentioned in the complaint had been rendered by the Probate Court, it had been rendered without the notice required by law, and was void. The 8th plea denied that Orme ever administered on the estate of Bitter, as the general administrator of Montgomery county; and by the l2th plea, it was alleged, that a large part of the amount of the decree mentioned, to-wit, $2,896.24, was proceeds of the sale of lands alleged to have belonged to said Bitter, which were sold under orders of the court, but that the proceeds were not assets of Bitter’s estate.

None of the pleas to which demurrers were sustained, averred that defendant had not executed the bond sued on, or had paid or satisfied the decree of the Probate Court; or that this decree had by fraud been obtained for a larger amount than was due from Orme.

Upon the trial, the evidence for plaintiff consisted of a certified transcript of the record of the Probate Court, containing the entry of the appointment of Orme as general administrator, a copy of the bond sued on, the order committing to him, as such administrator, the estate of Joseph Bitter, and other matters hereinbefore mentioned, and all else that was done in the course of the administration of that estate. Defendant introduced record evidence of the appointment, January 14th, 1866, of William G. Waller, as general administrator of Montgomery county, and of the ex-epqtion by him and sureties of a bond as such, and his acceptance of the office. And this being all the evidence in tbe cause, the circuit judge instructed the jury, that “if they believed the evidence, they must find for the plaintiff the amount of the decree of the Probate Court set forth in said transcript against Orme, with interest thereon from the date of its rendition; and that they must believe the evidence, unless there was some evidence contradicting it”; to which charge defendant excepted.

1. A point insisted on for the defense is, that the order made discharging the sureties upon Orme’s first bond, when he executed a second one, as set forth in the record of the Probate Court, effectually absolved defendant from liability for any mal-administration or delinquency by Orme after that time. This is not the effect, however, of the mere decree, without any recital, or evidence in the record, of the facts which the statute law makes necessary to give it such validity. A second or other subsequent administration bond may, from time to, time, be required of an executor, or administrator, on application by “any creditor, legatee, devisee, heir, distributee, or executor or co-administrator,” as well as by any surety on a former bond. — Rev. Code, § 2019. Such application “must be in writing; must specify the grounds of complaint, and be verified by oath.”- — Sec. 2020. After this, section 2038 (in the same chapter) enacts : “When an additional bond is given on the application of the surety of an executor or administrator, such surety is discharged as to all breaches subsequent to the execution and "approval of the additional bond.” No decree of the court is necessary, though it may be very proper, to produce that effect. And section 2037 enacts: “When the additional bond is not given on the application of a surety, the former bonds are not discharged,” <fec. This would be so, notwithstanding a decree of the court declaring such bonds discharged. Thus, we see that, on this subject, the statute law is unusually explicit. It is peremptorily declared, in both affirmative and negative forms of expression, that application by a surety is necessary to effect a discharge of former bonds. Now, it has become the settled law of Alabama, that, in the exercise by a Probate Court of statutory authority of this kind, its records must show that the facts upon which the efficacy of its action is made to depend did really exist. Many decisions, some of which seem to me to have been carried too far, have made this established doctrine in this court.— Wyatt’s Adm’r v. Rambo, 29 Ala. 510; Hamner v. Mason, 24 Ala. 480; 1 Brickell’s Dig. 439, § 171. Under their influence, and the emphatic expressions in the statutes, we are constrained to. hold that, as the record does not show that the second bond was given upon the application of any surety to the first, the defendant was not discharged from his liability upon it by the order of the Probate Court. Although a judge of probate may, whenever he finds it requisite, cause an administrator to be required to execute an additional bond, he has no power, when it has been executed without the application of a surety, to decree that the former bond shall be thenceforward discharged, and thus to deprive creditors, legatees, heirs, and distributees, of the benefit of a security that has been provided for them.

2. It is also insisted, on behalf of defendant, that Orme was not authorized to sell the real estate, and is not chargeable with the proceeds, because he was only an administrator ad colligendum — what is called in sections 1994 to 1997 of the Bevised Code, a special administrator, of Joseph Bitter’s estate; one whose duty it was to collect and preserve the goods of the deceased, for the administrator or executor to be afterwards appointed. We do not so understand the record. It nowhere confers on him only such limited authority, or even calls him a special administrator. True, in the order which recites that Orme “applied for letters of administration on the estate of Joseph Bitter, deceased,” not for a restricted and temporary authority to collect and preserve it, the Probate Court, having set forth that Orme had been “appointed general administrator for the county of Montgomery, and given bond as such administrator, in the sum of $50,000, with Amos Jones and Jason Gr. Jones as his securities, which bond was approved and recorded,” therefore ordered that “special letters of administration on the estate of Joseph Bitter, deceased, issue to him, the said Orme, and ordered that John W. Hughes and W. H. Shelby be * * * ap-' pointed appraisers of the personal estate of Joseph Bitter, deceased,” &c. It seems to us clear, that the word “special” here is used only in contradistinction to the word “general,” as applied to the same person just before, in designating him as the “general administrator of the county;” and it was ordered that “special letters of administration” issue to him, as the proper means and evidence of committing to him a particular estate, by reason of his being, and having given a sufficient bond, as general administrator of the county. Both what goes before, and what comes after that part of the order, as well as the fact that he was not charged with the duty of merely collecting and preserving the goods of Bitter’s estate, convincingly prove that he was constituted administrator of it, to the full measure of the office, and with all the powers belonging to it. The* record contains no mention of any circumstance that would serve as a reason for giving to him a less authority. It follows, that the sale he made of the real estate was valid, and that he is consequently chargeable with the money paid to him for it.

3. The testimony offered by defendant' — that the sureties, or one of them, did in fact, though not in writing, make application to the probate judge to have themselves released from the bond sued on, and the second one taken in its stead, was properly excluded by the court. Besides that the statutes, as we have seen above, required that the application should be in writing, it is not permissible to show by oral evidence that a record is defective, and then to have its defects in the same manner corrected or supplied.

4-5. The judicial ascertainment by the Probate Court of the amount of an administrator’s indebtedness, when not procured by fraud or collusion, is conclusive against his surety. — Ragland v. Calhoun, 36 Ala. 612; Fretwell v. McLemore, 52 Ala. 124. And until a judicial ascertainment of such liability, the statute of limitations does not begin to run in favor of his surety. — Fretwell v. McLemore, supra. And since tho transcript of the record in the Probate Court shows the amount and date of the decree against Orme as administrator, and itself contains proof of all the necessary averments in the complaint, and there is no conflicting evidence, the charge of the court, that if they believed the evidence, they must find for the plaintiff, was not erroneous. It is quite clear, from the record evidence, that any other that could have been legally introduced in support of the pleas that were adjudged bad on demurrer, would not have produced a different result on the trial. While, therefore, we find no error in the rulings of the Circuit Court sustaining the demurrers to those pleas, it is not necessary to go into a particular analysis and examination of them. For, when a demurrer to a plea is even improperly sustained, but the defendant has the benefit of his defense under another plea, “or the record shows he is entitled to no defense under the plea overruled, the judgment will not be reversed.” — Shehan v. Hampton, 8 Ala. 942.

6. If the defendant, when the Circuit Court decided certain of his pleas to be bad on demurrer, had proposed and asked leave to amend them, or any of them, in particulars in which they were held to be defective, it would have been the duty of the court, under section 2657 of the Eevised Code, to permit this to be done. But, instead of this, defendant proposed to file a number of other wholly different pleas. This is not amendment, within the meaning of that section. It was within the discretion of the court, doubtless, to permit them to be then filed; but if it refused to do so, we must presume it was because the judge was satisfied that, to allow it then to be clone, would only tend to produce useless embarrassment and delay. According to section 2662 of the Be-vised Code, when the term of the court is more than one week, the defendant must, within the first three days of the appearance term, plead or demur to the complaint; and if the term is to continue only one week, this must be done within the first two days. Certainly, no upright judge would rule out a plea, that was shown to be necessary to the attainment of justice in a cause, merely because not offered within the statute time. But we cannot undertake to say, when, as in this instance, more than a year has elapsed between the service of the summons and the trial, that a circuit judge acts either illegally or unjustly in refusing permission to file seven additional pleas, besides six on which a trial was to be had, and eight others to which demurrers had been sustained, all in a cause.

The real hardship to this appellant, who was a surety only, and reasonably supposed he was many years ago lawfully discharged from the bond he is now sued on, has made his able counsel labor in his behalf with a perseverance which their sympathy with him would not permit to relax.

We are constrained to affirm the judgment of the Circuit Court.

Stone, J., not sitting, having been of counsel.