Purdom v. Tipton

9 Ala. 914

• Court: Supreme Court of Alabama
• Decided: June 15, 1846
• Status: Published

Opinion

GOLDTHWAITE, J.

It is ruled in very express terms by the adjudications cited by the defendant in error, from Massachusetts, that not only the administrator, but also his sureties are liable for a debt due from him to the decedent. Here the question is not presented by the surety directly, and the previous decisions of this court have settled that the administrator, on the settlement of his accounts with the Orphans’ Court, is properly chargeable with a debt due from himself to the decedent. Childress v. Childress, 3 Ala. Rep. 752; Hampton v. Shehan, 7 Ib. 298.]

The reason of this is, that the distributees are entitled to have all the assets of the estate, and as the administrator is not in a condition to be sued, it must result in a charge against himself. The same consequences would probably flow from the same circumstances, if the suit was by a creditor against the administrator. Under a plea of plene adndnistravit, we incline to think he would be compelled to show that he had disbursed, for debts, $*c. of the" estate, to the extent of the debt due from himself. Whatever may be the effect of this charge hereafter, upon the surety for the administration, we have no doubt in this case, that the charge against the administrator was proper, whether he was or was pot insolvent. This conclusion renders it unnecessary to inquire whether a case of insolvency is made by the proof, and it is evidently premature' to decide on the liability of the surety, as his is not the case before us.

Judgment affirmed.