Paige v. Bartlett

• Decision Date: 27 July 1893
• Citation: 13 So. 768,101 Ala. 193
• Parties: PAIGE ET AL. v. BARTLETT ET AL.
• Court: Alabama Supreme Court

13 So. 768

101 Ala. 193

PAIGE ET AL. v. BARTLETT ET AL.

Supreme Court of Alabama

July 27, 1893

Appeal from chancery court, Clay county; S. K. McSpadden Chancellor.

Bill by James H. Paige, as administrator of Martha Harris, deceased and others, against George W. Bartlett, as executor of James L. Bunhill, deceased, and others. A demurrer to the bill was sustained, and complainants appeal. Bill dismissed.

The original bill was filed on September 26, 1891, by James H Paige, as administrator of Martha Harris, deceased, formerly Martha Mayes, widow of James E. Mayes, deceased, and others who were the heirs at law of James E. Mayes, and also against J. L. Hood, as administrator of Jane Halsell, deceased, a sister of said Mayes. The allegations of the bill, briefly summarized, are as follows: James E. Mayes died on June 29, 1862, a resident citizen of Talladega county, and on August 29, 1862, J. W. King was appointed administrator of his estate, and gave bond as such administrator. That J. L. Bunhill, L. M. Burney, J. D. McCann, J. F. Martin, and Thomas Adams were his sureties. The said King, acting as such administrator, received considerable property and assets of the estate of James E. Mayes, deceased, and made several partial settlements; the last being made in the probate court of Talladega county on May 30, 1877. That at the time of this settlement he had in his hands a large amount of money belonging to said estate. That said King, as such administrator, never made a final settlement of his administration, but moved to the state of Arkansas, and died there in the year 1889, owing the estate of said Mayes a large amount of money. The prayer of the bill was for the removal of the administration of James E. Mayes' estate from the probate court of Talladega county into the chancery court of Clay county; to settle said estate in the chancery court of Clay county; and to charge the personal representatives of the several deceased sureties on the bond of said J. W. King, as administrator of James E. Mayes, deceased, with his alleged devastavit.

The defendants demurred to the bill. The principal grounds of demurrer were as follows: (1) That there was not shown by the bill a sufficient presentment of the claim on which the suit was founded, under the statute of nonclaim, and no sufficient reason or excuse is averred for the failure of claimants to present such claim. (2) That it was not shown upon what claim or cause of action the suit alleged to have been brought by Mattie Paige on February 8, 1890, was founded, nor what right said Mattie Paige had to present said claim, and that it was shown that said suit was virtually abandoned by amendment, by an entire change of parties complainant. (3) There was no privity shown between J. H. Paige, as administrator, and Mattie Paige. (4) There was not sufficient reason or facts shown in the bill, as amended, to dispense with the further administration of the estate of James E. Mayes, and that the administrator de bonis non of said Mayes' estate was a necessary party complainant to the bill. (5) That the bill was multifarious, in that, as amended, it sought to recover a statutory penalty against W. T. Burney and John H. Short, in their individual capacity, and at the same time also sought a settlement of the administration, and to enforce a charge on the estates of the deceased sureties. (6) That it was affirmatively shown that more than 18 months had elapsed from the appointment of the administrator of Burney's estate before the bringing of the suit by Mattie Paige, on February 8, 1890. (7) That on the facts shown in the bill the court could not appoint an administrator ad litem on the estate of Sarah King, deceased, but her heirs or administrator were necessary parties. (8) That the chancery court of Clay county cannot take jurisdiction of this cause, or the settlement of the estate of James E. Mayes, deceased.

W. L. Hood, for appellants.

W. M. Lackey and C. C. Whitson, for appellees.

HARALSON J.

The commission of the alleged devastavit by J. W. King, as administrator of J. E. Mayes' estate, as set up in the bill, would constitute such a breach of his administration bond as to make it an accrued claim against the estates of his sureties on his bond, and put into operation the running of the statute of nonclaim. Glass v. Woolf's Adm'r, 82 Ala. 281, 3 South. Rep. 11; Martin v. Ellerbe's Adm'r, 70 Ala. 334; Taylor v. Robinson, 69 Ala. 269; McDowell v. Jones, 58 Ala. 25.

2. The bill shows that James F. Martin, L. M. Burney, Jos. D McCann, James L. Bunhill, and Thomas Adams were the sureties of J. W. King, on his bond as administrator of the estate of said J. E. Mayes. All these sureties, as is shown, are dead, and their administrators, except the one of said Adams, are made parties defendant to the bill, sued, as stated, to require them to account for the alleged devastavit of said King as administrator of said Mayes. Thomas Adams, as is shown, has been dead for many years, and one William Hamilton was appointed his executor by the probate court of Clay county, and his estate was finally settled in said court several years ago. The dates of the appointment of the personal representatives of these several sureties on said administration bond were as follows: Henry A. Manning was appointed administrator of J. F. Martin on the 21st of November, 1884; William T. Bishop and John H. Short, of L. M. Burney, on the 29th June, 1888; George W. Bartlett, as executor of James L. Bunhill, on the 7th of December, 1889; and Thomas Northen, as administrator of Jos. D. McCann, on the 18th of September, 1890. In the original bill, as filed, no presentment of the claim sued on in this action was averred to have been made to the personal representatives of these several sureties. The presentment was attempted to be shown by the amendment filed to the bill. For the greater certainty, and that we may not misinterpret the averments on which complainants rely, as showing a presentation of this claim under the statute, we quote the language of the amended bill, as follows: "The complainants charge and aver that the claim for which this suit was brought was on the 8th day of February, 1890, duly and legally presented to John H. Short and W. T. Bishop, as administrators of L. M. Burney, deceased, and to George W. Bartlett, as executor of James L. Bunhill, deceased, by filing a bill in the chancery court of Clay county, Ala., against them, by Mattie Paige, and on the 18th day of September, 1890, by amendment to the original bill, the other complainants presented their claim against defendants, and that complainants presented their claim to Thomas Northen, administrator of Jos. D. McCann, deceased, on the 21st day of July, 1891, by suing him in the chancery court of Clay county, Ala. And complainants aver that on the 25th day of September, 1891, the bill, as originally filed in said case, together with the amendments thereto, was dismissed by the court, on motion of the defendants, because there was a misjoinder of parties, in that, because the only party to the original bill of complaint had been stricken out by amendment to the bill, and because of said amendment, there was an entire change of parties. Complainants further charge and aver that said original bill and amendments thereto were exhibited in this court by those who had a legal right to present their claim to defendants, and that upon the dismissal of their said bill, to wit, on the 25th of September, 1891, the said complainants, or their legal representatives, did on the 26th of September, 1891, file the present bill in this court, seeking to enforce the collection of their said claims. Orators further charge and aver that the reason their claim was not presented to James H. Short and William T. Bishop, as administrators of L. M. Burney, within 18 months from the time they were appointed such administrators by the probate court of Clay county, Ala., was because the said Short and Bishop did not give notice to creditors as required by law, to present their claims against the estate of the said L. M. Burney, deceased. And orators charge and aver that by the...