Coleman v. Raynor
| Decision Date | 30 April 1866 |
| Citation | 43 Tenn. 25 |
| Parties | Benjamin Coleman v. Thomas Raynor, Adm'r. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM HAYWOOD.
At the August Term, 1865, defendant filed a plea in abatement, to which plaintiff demurred. The Court overruled the demurrer and dismissed the suit as to the administrator. Plaintiff appealed. Judge WM. P. BOND, presiding.
____________, for Plaintiff in Error.
____________, for Defendant in Error.
The pleadings in this cause present the following state of facts: On the 18th of August, 1861, Wm. B. Booker and James F. Allison, merchants and partners in trade, under the name and style of Booker & Allison, executed a promissory note, whereby they promised to pay to the order of James J. Allison, four months after date, the sum of three thousand dollars. James J. Allison indorsed and delivered the same to the plaintiff, and thereafter died intestate. James F. Allison was appointed administrator of the estate of said intestate by the County Court of Haywood County, at the August Term, 1864. At the June Term, 1865, of said County Court, Allison was permitted to resign his said administration, and thereupon, at the same term of the Court, Raynor was appointed administrator of the estate of said intestate. On the 30th of August, 1865, as appears from the record, Coleman, the assignee of the note, brought this action, in the Circuit Court of Haywood County, against the makers, and Thos. A. Raynor as administrator of James J. Allison, the indorser thereof. The administrator plead in abatement, that the action was brought against him before the lapse of six months after the date of his qualification as such administrator. To this plea the plaintiff filed a demurrer. The Court overruled the demurrer, and dismissed the suit as to said administrator; and the plaintiff has appealed to this Court. The question presented for our consideration, is this: Was this suit prematurely brought as against the administrator? It is insisted that under the provisions of sec. 2274 of the Code, the defendant, Raynor, was protected from suit, against him as administrator, for six months from and after the date of his qualification, and inasmuch as this suit was commenced within that time, it was therefore properly dismissed. At the common law an administrator could not resign, or by any voluntary act of his own, denude himself of the trust. But by sec. 2237 of the Code, it is provided, that any executioner or administrator may resign in the manner pointed out by that section, and that after the notice has been given of the application to resign, as required by that section, “the Court shall cause the petitioner's account to be settled, and may, at its discretion, accept the resignation of the petitioner, and appoint an administrator in his stead.” And by the following section it is further provided, that, “The Court shall order the petitioner to pay over and deliver to the new administrator the balance of money, property, and effects in his hands; and unless said payment and delivery be made, in pursuance of the order, the Court may order an execution against him and his sureties, after giving five days' notice to the sureties.”
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