Modawell, Adm'r v. Hudson, Ex'r

Modawell, Adm’r v. Hudson, Ex’r. Contest of Report of Insolvency. 1. Amendment mine'pro tunc-, what proper. — The probate court, during the trial on contest of a report of insolvency, made by the administrator de bonis non, may correct mine pro tunc the amount of indebtedness found against him on a former settlement as administrator in chief, if the matter becomes material, where the record furnishes proper basis for such correction. 2. Payment-, p-esumpiion of, when arises. — Where on final settlement a balance is ascertained against the administrator in chief, who thereon resigns, but succeeds himself in the administration as administrator de bonis non, the presumption of payment arises; and he and the sureties upon the last administration bond, are, as regards creditors, liable for the amount of the decree, without regard to the solvency or insolvency of the principal and sureties upon the first bond. APPEAL from Probate Court of Perry. The appellant, Modawell, as administrator de bonis non of the estate of B. H. Hudson, deceased, reported said estate insolvent; and upon contest by A. G. Hudson, executor of Abner Hudson, who was a creditor, the court found the estate was solvent, and dismissed the report. It appears from the bill of exceptions reserved by Modawell on the trial, that Modawell was appointed administrator some time in the year 1865. On the 19th day of December, 1870, he filed his accounts and vouchers for a final settlement, and on the 13th day of February, 1871, made a final settlement of his accounts and vouchers in the probate court,, by which it was ascertained he was indebted to the estate in the sum of $2,997.12. On the same day, Modawell filed his resignation, which was received by the court and ordered filed. On the 15th day of February, 1871, Modawell applied for letters of administration de bonis non on said estate, and was appointed and qualified, giving bond with other sureties than those on the original bond. At the time, one of the sureties on the original bond had been declared bankrupt and received a discharge; the other had removed from the State, and was insolvent, as was Modawell, also; and there was no time after that, that Modawell, by the exercise of diligence, could have collected the decree out of the parties on the first bond. Since ModawelPs appointment as administrator de bonis non be had received only $926, and had expended for the estate the sum of $1,226. He testified that he was charged in the account settled in February, 1871, with amounts exceeding the balance of $2,997.12 found against him, as the proceeds of cotton belonging to the estate, which had been lost by the failure of a commission firm of which Modawell was a member, though not actively controlling its affairs. At the time when the notice of contest was filed, the contesting creditor also fifed a motion to correct nunc pro tunc the decree rendered on the settlement of February 13th, 1875, so as to charge said Modawell with the sum of $7,814.57. It appeared from an inspection of the accounts and vouchers filed by Modawell on that settlement, that this was the amount with which he was properly chargeable, and the lesser amount fixed in the decree of the 13th of February, 1871, was due to clerical misprisions of the administrator in not charging himself with certain items, and improperly crediting himself with others. Objection was made to the granting of the motion, on the ground that a creditor had no right to make the motion, and that it presented a new and distinct issue from that of the insolvency of the estate. The court overruled the objection, and amended the decree in accordance with the motion, and Modawell excepted. There were exceptions reserved to various other rulings, to which further reference is unnecessary, as the estate was solvent, if the amount of the decree of the 13th of February, 1871, was assets in his hands, for which he and his sureties on the second administration bond were responsible. The dismissal of the report of insolvency, and the amendment nunc pro tunc, are now assigned, among other things, for error. Watts & Watts and W. JB. Modawell, for appellant. Bailey & Lockett, contra. [MAJORITY — STONE, J.] STONE, J. The Probate Court did not err in the correction nunc pro tunc of the decree rendered in the settlement of the administration in chief. The records and papers in the cause, so far as we can learn, showed the error, and it was clearly the privilege, if not the duty of the Probate Court, to make the correction.—Moore v. Lesueur, 33 Ala. 237. The fact that that subject was taken up, and the correction made while the main trial was in progress, can not, without more, avail to set aside the judgment pronounced. "We think it was permissible in the court to suspend the one trial, that it might consider the motion made to amend. In the case of Seawell, Adm’r of Buckley v. Buckley, 54 Ala., Horace B. Buckley had died, and J. J. T. Wilson was appointed administrator in chief of his estate. He gave bond as such, with Wm. B. Seawell as one of his sureties. Wilson ceased to be administrator, and Seawell was then appointed administrator de bonis■ non of Buckley’s estate. He brought his predecessor to a settlement of his administration, and a decree was therein rendered in his favor as administrator de bonis non, against Wilson, the administrator in chief. This decree was never in fact paid. When Sea-well, the administrator de bonis non, was brought to a settlement, the question was whether he should be charged in his administration account with the amount of the decree against his predecessor. We then said: “The appellant was the surety, on the bond of Wilson, liable for his defaults. Whatever balance was due from Wilson when legally ascertained, became a debt due from appellant. That balance having been legally ascertained in a judicial proceeding to which appellant was a party, he became as liable for it as he would have been for a promissory note, or bond, executed by him to the intestate. He, alone, had the right to sue for and to receive satisfaction of the decree of the Court of Probate. It was rendered, and properly rendered, in his favor. As surety of Wilson, he became liable to pay it on its rendition. The right to demand and the obligation to pay co-existing in him, as to his eestuis que trust, those for whom he is bound to exercise the right to demand, and for whom he is bound to discharge. the obligation to pay — the debt was extinguished. A presumption of its payment arises, because that was the duty resting on the appellant.” And the court charged the second administration with the amount of the decree in its favor, against the first, as so much money actually received. The present case is much stronger than the one from which we have copied. In that ease the decree was in favor of Seawell,'administrator de bonis non, against Wilson, administrator in chief. An execution on that decree could have been issued, levied on the property of Wilson, and the money made, if he, Wilson, had property sufficient to meet the demand. Only in the event of a deficiency of Wilson's property to liquidate the claim, would it have become necessary to proceed against Seawell, or his effects, to force the ■collection. Only in that event could the right to demand, and the obligation to pay, have co-existed in one and the same person. In the present case, the incompatibility is encountered at the threshold. The same person fills both trusts — would be both plaintiff and defendant in any proceedings to enforce the collection — and hence not a step could be taken in that direction. If the presumption of payment does not arise in such a case as this, the inevitable result will be that the default of the administration in chief, even though ascertained by a decree of the court, must remain in abeyance, without any means of coercive redress, so long as the administration de bonis non continues; and it would require a second administration de bonis non, confided to a different person, to force such administration in chief to .account. To prevent just such result as this was the rule of presumed payment established. See the authorities collected in Whitworth v. Oliver, 39 Ala. 293. We think the Probate Court did not err in holding that the amount of the corrected decree, against the administration in chief, was assets in the hands of the administrator de bonis non. The result of such holding is that the estate was not insolvent. Decree of the Probate Court affirmed.