Alabama Co. v. Brown

• Decision Date: 30 June 1921
• Docket Number: 6 Div. 135.
• Parties: ALABAMA CO. v. BROWN.
• Court: Alabama Supreme Court

92 So. 490

207 Ala. 18

ALABAMA CO. v. BROWN.

6 Div. 135.

Supreme Court of Alabama

June 30, 1921

Rehearing Granted Oct. 6, 1921.

Rehearing Denied Dec. 21, 1921.

Appeal from Circuit Court, Jefferson County; Horace C. Wilkerson Judge.

Action by Cordelia Brown, as administratrix of the estate of Albert Brown, against the Alabama Company for damages for the death of her husband. Judgment for the plaintiff, and the defendant appeals. A remittitur of damages was ordered, which having been accepted, the cause was affirmed.

Anderson C.J., and Miller and McClellan, JJ., dissenting as to paragraph 1. Thomas, McClellan, and Somerville, JJ dissenting as to paragraphs 3 to 5.

Tillman, Bradley & Baldwin and T. A. McFarland, all of Birmingham, for appellant.

Black & Harris, of Birmingham, for appellee.

MILLER J.

Plaintiff's intestate, Albert Brown, was killed while working in the ore mine of defendant by slate falling from the roof of the mine.

This suit is brought by Cordelia Brown as administratrix of his estate against the defendant under subdivision 1 of section 3910 of the Code of 1907, known as the Employers' Liability Act. The complaint averred that the roof of the mine was defective.

The deceased, Albert Brown, left a father and mother who resided in Alabama, and his wife, Cordelia Brown, who was residing at the time of his death in Ohio with her parents, and had been there, away from her husband, for nearly two years previous to his death. The deceased left no children or their descendants. One child was born to him and his wife, but it died before Albert Brown.

Dave Brown, father of Albert Brown, 19 or 20 days after Albert Brown's death, was appointed administrator of his estate by the probate court of Etowah county, Ala. On the same day of his appointment the defendant paid him as administrator $500 in full settlement of the claim against defendant growing out of the death of Albert Brown, and he signed a written release in his individual name; but the release recited it was paid to him as administrator of the estate of Albert Brown, deceased.

Cordelia Brown, wife of deceased, made application on August 12, 1919, to the probate court of Etowah county, Ala., for letters of administration on his estate; and on August 20, 1919, made application to remove Dave Brown as administrator, and to appoint her administratrix of said estate. The probate judge of said county revoked and annulled the letters of administration issued to Dave Brown on September 11, 1919, and appointed her as administratrix on September 18, 1919.

The defendant pleaded the general issue and many special pleas, to only two of which the attention of this court is called. The special pleas 6 and 12 set up that before this suit was commenced the defendant settled and compromised the cause of action attempted to be set up in this complaint with Dave Brown, the then duly appointed, qualified, and acting administrator of said estate.

The plaintiff files two replications to each of said special pleas. Each replication sets up fraud between defendant and Dave Brown, as administrator, in said settlement, and sets up facts constituting the alleged fraud, and each replication also avers:

"That she has not received from said D. B. (Dave) Brown the sum of $500, nor any part thereof, nor has she at any time in any way whatsoever ratified the said settlement, and that she has constantly opposed the settlement for such a grossly inadequate amount, and that she is now opposing such alleged settlement."

The defendant demurs to each of the replications on the following, and many other grounds: The replication does not aver that plaintiff, or any one for her, has ever tendered to defendant said $500, or any part of it; "there is no averment that the defendant has been placed in statu quo;" and there is no averment that plaintiff or any one for her has ever offered to put the defendant in statu quo.

The plaintiff can affirm or disaffirm the contract, if fraudulent. If plaintiff disaffirms, it must be done as early as practicable after discovery of the fraud. This court has established this rule:

"The person who would disaffirm a fraudulent contract must return whatever he has received under it. This is on a plain and just principle. He cannot hold on to such part of the contract as may be desirable on his part and avoid the residue, but must rescind in toto, if at all. *** This rule prevails in courts of law as well as equity." B. R., L. & P. Co. v. Jordan, 170 Ala. 530, 54 So. 280; Stephenson v. Allison, 123 Ala. 439, 26 So. 290; Harrison v. Ala. Mid. R. R. Co., 144 Ala. 256, 40 So. 394, 6 Ann. Cas. 804.

The plaintiff by these replications seeks to disaffirm on the ground of alleged fraud in the contract made and release given by Dave Brown as administrator of this estate to defendant for $500; but plaintiff fails to aver that the $500 has been returned or offered or tendered to defendant, or that she has returned to defendant what the estate received under the release. She avers in her replication:

"That she has not received from said D. B. Brown the sum of $500, nor any part thereof, nor has she at any time or in any way whatsoever ratified the said settlement."

Is this a sufficient averment to answer the rule of law that the estate of deceased must return whatever it has received under it-the alleged fraudulent contract or release-before it can disaffirm the contract and maintain the suit for the same alleged cause of action?

Dave Brown, the father of deceased, within 40 days after decedent's death, applied for and obtained letters of administration on his son's estate. The widow, under section 2520, had the first right, and Dave Brown the second right. The widow within the 40 days applied to the court and had letters of administration revoked to Dave Brown, and granted to her, as the law allowed, she not having waived her right thereto. Section 2522, Code 1907.

The issuance of letters of administration to Dave Brown was not void, but voidable. The widow by seasonable application within 40 days after the death of Albert Brown had the right to have letters of administration to Dave Brown revoked and to be appointed administratrix of the estate, she being competent to serve. Childs v. Davis, 172 Ala. 266, 55 So. 540; sections 2520, 2522, and 2530, Code 1907; Carr v. Ill. Cent. R. Co., 180 Ala. 159, 60 So. 277, 43 L. R. A. (N. S.) 634.

"Letters *** of administration *** granted by any court having jurisdiction are conclusive evidence of the authority of the person to whom the same are granted, from the date thereof until the same are revoked; and when granted, such letters *** extend to all the property of the deceased in the state." Section 2530, Code 1907; Johnson v. Kyser, 127 Ala. 309, 27 So. 784; Garrett v. Harrison, 201 Ala. 186, 77 So. 712; Kling v. Connell, 105 Ala. 590, 17 So. 121, 53 Am. St. Rep. 144; Barclift v. Treece, 77 Ala. 528.

One replication to said pleas avers that the bond of the administrator, Dave Brown, was approved with only one surety, and the law requires two. While the statute requires the bond to be signed by at least two sufficient sureties or a sufficient guaranty or surety company, still, if only one individual surety signs the bond, this is an irregularity that does not render the appointment of the administrator void. The bond is binding on the one surety and principal. Steele v. Tutwiler, 68 Ala. 107; Cunningham v. Thomas, 59 Ala. 158; Ex parte Maxwell, 37 Ala. 362, 79 Am. Dec. 62; section 2540, Code 1907.

These replications to pleas 6 and 12 do not question the jurisdictional right of the probate court of Etowah county to grant the letters of administration on the estate of Albert Brown, deceased. The court granted the letters to Dave Brown within 40 days after the death of the intestate: this was voidable, and not void. The defendant paid this administrator Dave Brown before his letters were revoked $500, in full settlement and release of matters involved in this suit.

When the letters of administration of Dave Brown were revoked by the court, it was his duty "on demand to deliver to the rightful administrator," the plaintiff in this case, "all the assets of the deceased which may be in his hands, and render an account on oath of all his proceedings to the probate court." Section 2529, Code 1907. After Dave Brown was removed and his letters of administration revoked, he "must within one month after his authority ceases" file his accounts, vouchers, and statement of heirs and legatees for, and must make final settlement of, his administration of the estate. Section 2692, Code 1907. The succeeding administratrix of the estate of Albert Brown, the plaintiff in this suit, must be made a party to such settlement. Section 2693, Code 1907.

If there remains any act of administration to be done, other than making the settlement and distribution, and there is a succeeding administratrix, as in this case, a decree must be rendered in her favor for the amount found due on such settlement. Section 2694, Code 1907. If Dave Brown, after being removed as administrator of said estate, fails to make settlement within the time required by law, "the court may, on its own motion, or on application of any party in interest, compel him to do so by attachment." The plaintiff in this suit on proper application to the probate court of Etowah county could have the court compel Dave Brown to settle his administration of the estate. Section 2697, Code 1907.

The $500 damages paid Dave Brown as administrator was not subject to payment of debts or liabilities of the estate, but should be distributed according to the statute of distribution. Section 3912, Code 1907. The widow, Cordelia Brown, the administratrix, is the only...