Newell v. Bushard

• Decision Date: 05 February 1920
• Docket Number: 6 Div. 942
• Citation: 204 Ala. 73,85 So. 274
• Parties: NEWELL et al. v. BUSHARD et al.
• Court: Alabama Supreme Court

85 So. 274

204 Ala. 73

NEWELL et al. v. BUSHARD et al.

6 Div. 942

Supreme Court of Alabama

February 5, 1920

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by A.T. Newell and others against J.B. Bushard, as executor, and others, to enjoin the prosecution of an action at law. From a decree for respondents, complainants appeal. Affirmed.

Johnston & Cocke and Nesmith & Hunt, all of Birmingham, for appellants.

E Crampton Harris, of Birmingham (B.M. Allen and Hugo L. Black both of Birmingham, of counsel), for appellees.

SOMERVILLE J.

The sole question presented by this appeal is: Can a sole heir and distributee, after administration and after suit brought settle and release the claim as to damages for the wrongful death of the intestate (or testator), without the assent of the personal representative, so as to create thereby an equitable defense to the further prosecution of the action which a court of equity will enforce by a writ of injunction against the personal representative?

In the case of Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann.Cas. 1913B, 225, it was held that such a settlement and release, made before administration and suit brought, created a complete equitable defense to the action afterwards brought by the administrator, and injunctive relief was held to have been properly granted. That decision is undoubtedly sound, and is supported by reason as well as by authority. McKeigue v. C. & N.W. Ry. Co., 130 Wis. 543, 110 N.W. 384, and annotations thereto in 11 L.R.A. (N.S.) 148, 10 Ann.Cas. 555, and 118 Am.St.Rep. 1038; 8 R.C.L. 790, § 71. The statement of the question, as noted in the opinion of Mayfield, J., in Kennedy v. Davis, supra, limits the scope of the opinion and the effect of the decision in that case to settlements and releases made by a sole distributee before administration.

In the instant case, the executor of the will of the testator had duly qualified and brought his action; and seven months after suit brought, the testator's widow, who was the sole distributee under our statutes (Code,§§ 2486, 3754), without the assent of the executor, undertook to make a personal settlement with the defendant by which she executed a full satisfaction and release of all damages upon the cause of action sued on.

We are thoroughly satisfied that such a settlement is unauthorized, tortious, and void, and cannot be regarded, either in law or equity, as an impediment to the prosecution by the personal representative of his action at law, and his recovery therein of "such damages as the jury may assess."

The principle to be applied was settled, upon very full consideration, in the early case of Johnson's Adm'r v. Longmire, 39 Ala. 143. It was there said:

"Where there is a sole distributee, and the estate owes no debts, *** a bona fide payment to the sole distributee, of a fund to which such estate is entitled, made before administration granted, would operate in equity a discharge of the party paying from liability to an administrator subsequently appointed. But the authority of the probate court to grant administration, even though there is but one distributee, and the estate owes no debts, cannot be questioned; nor can it be doubted that, when such administration is granted before the property has been reduced to possession by the distributee, the rights of the administrator are, to the personal estate, exclusive, and he alone can give a valid discharge upon payment of a demand due the intestate. *** Hence, a payment to the sole distributee, while there is a pending administration, is tortious, as against the administrator, and cannot work a discharge of the liability, or constitute a ground of relief in equity. *** The contest here is between the administrator and the debtor, and certainly it would be contrary to legal principle, as well as productive of much confusion, to allow parties owing an estate to pass by the administrator, whose right to collect is universally known to be exclusive, and make payment direct to the distributee. (Italics supplied.)"

And the court very pointedly observed that--

"It would subvert the whole theory of administrations, if we were to permit a mere stranger to distribute an estate, in usurpation of the functions of the legally appointed *** representative."

We do not overlook the fact, stressed by counsel for appellants that, in the case above referred to, the claim paid to the distributee was one due to the decedent in his lifetime; while in the instant case the claim is for damages which were never due the decedent in his lifetime, but are an asset of his estate merely for the purposes of collection and...