Lowery v. Daniel

• Decision Date: 20 June 1893
• Citation: 13 So. 527,98 Ala. 451
• Parties: LOWERY v. DANIEL.
• Court: Alabama Supreme Court

13 So. 527

98 Ala. 451

LOWERY v. DANIEL.

Supreme Court of Alabama

June 20, 1893

Appeal from circuit court, Crenshaw county; John P. Hubbard, Judge.

Action by Robert Lowery against E. J. Daniel, administrator of W. J Daniel, deceased, to recover a certain amount of money had and received by the defendant. There was judgment for the defendant, and plaintiff appeals. Affirmed.

The motion of the plaintiff to amend his complaint is only stated in the judgment entry, and is in the following language "The plaintiff then moved the court to amend his complaint by adding another count, which is in words and figures as follows: 'The plaintiff further claims of the defendant as such admrs. one hundred and twelve dollars as ascertained balance in the hands of said deft. as such admrs by a decree of the chancery court of said county of Crenshaw in the state of Ala., on the 24th day of January, 1890, which amount is still due and unpaid."' The court refused to allow this amendment, and the plaintiff duly excepted, and, declining to plead further, judgment was rendered for the defendant.

Gamble & Bricken, for appellant.

I. H. Parks, for appellee.

HARALSON J.

The summons and complaint in this case each describe the defendant as "E. J. Daniel, Admr. of W. J. Daniel, Dec'd." The complaint is, "Robert Lowery, Plaintiff, v. E. J. Daniel, Admr. of W. J. Daniel, Dec'd." "The plaintiff claims of the defendant the sum of one hundred and twelve 72/100 dollars, money had and received by defendant at divers times, to wit, [specifying the dates when received,] to and for the use of the plaintiff, with interest thereon." The suit, it will be observed, is not against the defendant as administrator, but against him individually; the word "administrator" after his name being merely descriptio personae. Westmoreland v. Foster, 60 Ala. 449; Buckley v. Wilson, 56 Ala. 395; Lucas v. Pittman, 94 Ala. 616, 10 South. Rep. 603. Besides, the complaint is for "money had and received by defendant, to and for the use of plaintiff." This is a complaint against the defendant individually, for such a thing as an administrator receiving money for the use and benefit of another, and being accountable to him for it, in an action at law against him, in his representative capacity, is not known to our law. An administrator, in the discharge of his duties, can receive nothing which did not belong to his intestate, and which does not enter properly into the administration of his estate. He must collect the debts owing to the estate, pay the claims against it, in the order of their preference, and the residue, if any, distribute among the persons entitled thereto according to law. If he goes further, and proceeds out of this order, he does so at his individual risk. 1 Brick. Dig. p. 957, § 609.

The defendant filed a plea which had no relevancy to a suit against him as an individual. But, treating the action as one against him as administrator, he pleaded, in substance, that before the commencement of this suit, on the 12th of January 1890, he made a final settlement of his trust as administrator of the estate of W. J. Daniel in the probate court of Crenshaw, by which court he had been appointed administrator on the 19th of January, 1888, and had fully administered said estate; that there were no assets in his hands to be delivered to a successor, and that the court made a final decree discharging him from said administration. The plaintiff, treating the case as one against the defendant as administrator, demurred to this plea, on the ground that "it fails to aver that defendant filed his account as administrator of said estate in the probate court of said county for a final settlement of his administration of said estate, and that said decree of said probate court was rendered on final settlement of said estate in said account filed by defendant as such administrator." There is evidently some mistake about the...