Martin v. Atkinson

• Decision Date: 10 January 1896
• Parties: MARTIN v. ATKINSON ET AL.
• Court: Alabama Supreme Court

18 So. 888

108 Ala. 314

MARTIN v. ATKINSON ET AL.

Supreme Court of Alabama

January 10, 1896

Appeal from chancery court, Conecuh county; Jere N. Williams Chancellor.

Bill by W. R. Martin against W. D. Atkinson, administrator de bonis non of the estate of John Nored, deceased, and others, to enjoin the collection of executions, and for other relief. From a decree dismissing the bill for want of equity complainant appeals. Affirmed.

The bill in this case was filed against the appellees by the appellant, William R. Martin, who was a surety on two certain bonds; one given by Sarah J. Nored and George W. Pryor, as the executrix and executor jointly on the estate of John M Nored, deceased, and the other of said Pryor as administrator de bonis non, etc., of the same estate. The facts of this case, as far as is necessary to set them out, may be stated as follows: In 1888, John Nored, of Conecuh county, died leaving a will appointing his widow, Sarah J. Nored, and George W. Pryor his executors. On the 15th of October, 1888 the probate court of said county, appointed these parties executors, who gave bond with M. W. Kimberly, S. J. Bolling, T. W. Peagle, and William M. Martin, the appellant in this case, as sureties thereon. On the 28th of January, 1889, said executors, by an order of the said probate court, were removed from said administration. On the same day,-28th January, 1889,-George W. Pryor, one of said executors who had been removed from said administration, was appointed by said court, administrator de bonis non with the will annexed, of the said estate, with W. M. Nored, W. W. Wilkinson, H. Z. Wilkinson, O. M. Pryor, Sallie Pryor, Sarah J. Nored and the appellant, William M. Martin, as sureties on his administration bond. On the 13th day of January, 1891, said George W. Pryor resigned his administration, de bonis non, of said estate. On the 16th day of February, 1891, W. D. Atkinson, the appellee, was appointed administrator de bonis non of said estate. On the 11th day of March, 1889, said executors,-who had been removed from their executorship,-made a settlement of their partial administration, the said George W. Pryor, so far as appears, together with his late coexecutor, representing the estate and themselves and W. D. Atkinson, as guardian ad litem of minor children, representing them, on this settlement. A decree was rendered by said probate court in favor of George W. Pryor, administrator, etc., against himself and Sarah J. Nored, late executors, for $6,823.34. The concluding part of the decree is, "It is therefore ordered, adjudged and decreed by the court, that the said George W. Pryor, administrator de bonis non of said estate, have and recover of George W. Pryor and Sarah J. Nored, late executors, the sum of six thousand eight hundred and twenty-three and 34/100 dollars, the amount found to be due as above stated, for which execution may issue." It is averred, that in and by this account current for said settlement, George W. Pryor falsely pretended that said executors had then on hand said sum of $6,823.34 belonging to said estate; that said sum was charged to and against him, as administrator de bonis non, and no execution was ever issued against Sarah J. Nored, who was and is solvent, for the collection of said sum, nor against the said George W. Pryor, who was and is insolvent; that at that time said executors, nor either of them, had said sum of money or any part of it on hand, as belonging to said estate; that the charge of the same against said Pryor, as administrator de bonis non, was a fraud by him, to relieve said Sarah J. Nored, his mother-in-law, from liability. It is further averred, that after the appointment of said Pryor, as administrator de bonis non, he received other large sums of money belonging to said estate. On the 9th day of February, 1891, the said George W. Pryor, who had resigned his administration of said estate, on the 13th of January preceding, made a settlement in said probate court of his administration. This decree recites, that notice had been given of the time and nature of said settlement, by publication in strict accordance with law and the orders of the court. W. D. Atkinson, as guardian ad litem represented the minor heirs interested in the settlement. It does not appear, that, at this time, there had been any appointment of an administrator of said estate, succeeding said Pryor, for it appears that W. D. Atkinson was afterwards, on the 16th February appointed by said court, as the administrator de bonis non of said estate. But, the decree recites, that it "appearing to the court, that prior to this settlement, to wit, on the 13th day of January, 1891, the said George W. Pryor, administrator de bonis non, cum testamento annexo, tendered his resignation as administrator; and it further appearing that by reason of said resignation, and its acceptance, the said George W. Pryor, administrator as aforesaid, is interested adversely to said estate, W. D. Atkinson was under and by virtue of section 2283 of the Code of 1886, appointed administrator ad litem, and the said w. D. Atkinson having come and consented to act as such administrator ad litem, the court proceeds to examine and audit said accounts and vouchers, etc." On this settlement, a decree was rendered against said George W. Pryor and Sarah J. Nored, the former executors, and the sureties on their bond for $1,300, and one against said George W. Pryor, administrator de bonis non, and the sureties on his administration bond for $4,769.75, and purports to be rendered, in each instance, in favor of the present administrator de bonis non, for which executions were ordered to issue. Both judgments were rendered in the same decretal order. The decree contains a recital, that said administrator de bonis non, George W.

Pryor without any application for, and obtaining an order of court therefor, and without taking refunding bonds, and when it was not known that there would be a sufficiency of assets to pay the creditors of the estate, paid to the legatees under the will, the sum of $5,159.58, and this sum was ordered charged against him, and, to quote the language of the decree, "that he and his bondsmen be liable to this court therefor, or for so much thereof as may be necessary to pay the debts of said estate, and to secure a just and equal division among the...