Kirkman, Abernathy & Hanna v. Benham

28 Ala. 501

Opinion

STONE, J.

The bill of exchange mentioned in the pleadings, although signed as drawer by George M. Savage, styling himself 11 executor of Samuel Savage,” is the personal contract of Geo. M. Savage, and does not bind the estate he represented. Kirkman, Abernathy & Hanna were accommodation acceptors, and, as such, have a right to be reimbursed by Geo. M. Savage, the drawer. This, however, gives them no claim against the estate of Samuel Savage. — Johnson v. Gaines, 8 Ala. 791; Willis v. Willis, 9 Ala. 330; Jones v. Dawson, 19 Ala. 672.

The money raised on this bill of exchange was used by Dillahunty, with the consent of Geo. M. Savage; and both Dillahunty and Geo. M. Savage are insolvent. The gravamen of the bill, as we understand it, is, that Geo. M. Savage, after he had,’ without authority, lent to Dillahunty moneys of the estate of Samuel Savage, took from the said Dillahunty his confession of judgment for said moneys, and also embraced in the judgment the moneys raised on said bill of exchange. This confession of judgment was to “ Geo. M. Savage, executor of Samuel Savage, deceased.” Benham, the administrator de bonis non, has collected a part of said confessed judgment, but there still remains an unpaid balance, greater in amount than the claim of complainants. The bill prays a pro rata division of the fund collected. The unauthorized blending, by the executor in chief, of a debt due to himself or to complainants, with a debt to the estate of his testator, can not confer a right on complainants to go against the estate of Savage. If Benham had collected of Dillahunty more than was due to testator’s estate, that balance would, ex cequo et bono, belong to complainants, or to George M. Savage. Whether such balance could be recovered by suit in chancery at the instance of complainants, we are not called upon to decide, as the bill contains no averments to raise this question.

Another view is fatal to this bill. There is no averment, denying that Geo. M.' Savage obtained credit in his administration for the moneys lent to Dillahunty, and those paid to Patton.' — See Jones v. Dawson, supra.

There is no equity in the bill, and the decree of the chancellor is affirmed.