
    WHITWORTH’S DISTRIBUTEES vs. OLIVER et al.
    [BILL IN EQUITY BY DISTRIBUTEES TO COMPEL SETTLEMENT 03? ADMINISTRATOR’S ACCOUNTS.]
    1. Virginia not alien enemy to Confederate Slates', judicial notice of public events. — The recitals in the preamble to the act of the provisional congress of the Confederate States, approved May 6th, 1861, which first recognized the existence of the war between the United States and the Confederate States, and the known history of the times, of which the courts will take judicial notice, show that Virginia never was an alien enemy to the Confederate States.
    2. Inability of sureties on administrator's bond. — Whore the same person becomes a second time the administrator of a decedent’s estate, moneys received by him during the first administration, and not shown to have been wasted or converted, are presumed to remain in his hands at the time of his second appointment, and the sureties on his second bond are responsible for them.
    3. Offices of administrator and probate judge not incompatible. — The acceptance of the office of probate judge by an administrator does not work a vacancy in the administration, on the ground of incompatibility ; administration being a trust, rather than an office.
    4. Bespective duties of administrators in chief and de bonis non. — Where an administrator in chief resigns, or is removed, or his office expires, before the administration is so far matured as to be ready for final settlement, it is his duty, under the .provisions of the Code, (§§ 1718-19,1876,1878,] to account to the succeeding administrator de bonis non for all moneys in his hands, or collected by him, not paid out or duly expended; and it is equally the duty of the latter to collect such funds from the former.
    5. Extinguishment of debt by presumption of payment. — Where a debtor becomes the administrator of the estate of his deceased creditor, the presumption of payment arises, and the debt is extinguished, without reference to his solvency or insolvency; but this principle does not apply, where a person who has been administrator in chief of a decedent’s estate, but has never settled that administration, is after-wards appointed administrator de bonis non.
    
    
      6. Inability of sureties on administrator’s second bond. — Where an administrator in chief, whose office has expired "before the administration is ready for a final settlement, is afterwards appointed administrator de bonis non, and fails to transfer to the second administration, within a reasonable time, assets received and not duly expended during the first, or to account for them, if wasted or converted, the sureties on his second bond are responsible for his default.
    Appeal from the Chancery Court of Greene.
    Heard before the Hon. James B. ClaRK.
    The bill in this case was filed, on the 2d February, 1861, by Joseph W. Gills, Elizabeth Ann Gills, his wife, and Mrs. Sarah Whitworth, against William C. Oliver, as the administrator of Henry Clay Whitworth, deceased, and the sureties on his official bond. It alleged, that the complainants resided in Yirginia, and were the distributees and next of kin of said decedent, Mrs. Sarah Whitworth being his mother, and Mrs. Gills his sister; that the deceased died in Yirginia, where he resided, in 1845, intestate, and under fourteen years of age; that by the statute laws of Yirginia, his mother and sister, as his heirs-at-law and next of kin, were entitled to equal shares of his estate; that Oliver was appointed administrator of the estate of said decedent, by the probate court of Greene county, on the 28th December, 1854, and gave bond, with his co-defendants as sureties; “ that he afterwards received, as such administrator, on the division of the estate of Christopher H. Whitworth, deceased, (who was the father of said Henry Clay Whitworth,)-certain slaves, for the said Henry Clay Whitworth and Elizabeth Ann Gills ” ; that as such administrator, and as guardian for said Elizabeth Ann, he hired out these slaves for several years, and received the hires, but had never returned any account thereof to said probate court; that in 1852, “prior to his regular appointment as administrator as aforesaid,” said Oliver was the sheriff of said county, and by virtue of that office was appointed administrator of said H. C. Whitworth, “ and, while acting as such, received and collected moneys belonging to said estate”; that on the final settlement of the estate of said Christopher H. Whitworth, said Oliver, as administrator, would be entitled to retain for tbe estate of said H. C. Whitworth about $2,347, for which he ought to account to the complainants; that said Oliver was elected probate judge of said county in 1856, and was holding that office when the bill was filed; and that he was insolvent. The prayer of the bill was for “ an account of the receipts and disbursements of the said Oliver as administrator of the said H. 0. Whitworth,” and for a final settlement and distribution of the estate.
    The defendants demurred to the bill, for want of equity, for multifariousness, and because the complainants appeared by it to be alien enemies. The chancellor sustained the demurrer, and dismissed the bill; and his decree is now assigned as error.
    Wm. P. Webb, for appellants.
    T. Beavis, contra.
    
   STONE, J.

The demurrer to the bill in this case, on the ground that when the bill was filed — February 2d, 1861— the complainants, who were residents of the State of Virginia, were alien enemies, and therefore incapable of maintaining an action in our courts, is not well taken. Without intending, at this time, to declare at what time the present war between the United States and the Confederate States had its beginning, we feel no hesitation in affirming that at no time has the commonwealth of Virginia been a party to the war against us; and hence we hold, that the unsupported fact, that the complainants were residents of Virginia, did not, at the time the bill in this case was filed, constitute them alien enemies.

The act of our provisional congress, which first recognized the existence of the present war, was approved May 6th, 1861. — Acts of Provisional Congress, 2d session, p. 22. In the preamble to that act is the following recital; “ And whereas the State of Virginia has seceded from the Federal Union, and entered into a convention of alliance, offensive and defensive, with the Confederate States, and has adopted the provisional constitution of the said states.” The preamble went further, and expressly excepted all the slave states and territories of the former United States, Maryland, North Carolina, Tennessee, Kentucky, Arkansas, Missouri and Delaware, and tbe territories of Arizona and New Mexico, and tbe Indian Territory south of Kansas, from tbe state of hostibty to us, wbicb tbat act ascribed to tbe other states and territories composing tbe Federal Union. These facts, and tbe known history of tbe times, of which we take judicial cognizance, [see 1st Greenl. Ev. § 4,] demonstrate tbe truth of tbe proposition stated above, tbat at no time has tbe State of Yirginia been a party to tbe war against tbe Confederate States.

Tbe objection of mnltifariousness in tbe present bill is not well taken. Tbe bill only seeks to bring Mr. Obver to a settlement of bis second administration of tbe estate of H. C. Whitworth; we mean, tbe one to wbicb be was appointed in December, 1854, when, it is alleged, bis co-defendants became bis sureties. True, tbe bill alleges tbat certain moneys bad come to tbe bands of Mr. Oliver during bis first administration ; and of these moneys tbe bib prays an account against the present defendants. There is nothing in tbe bill from wbicb it can be inferred tbat those moneys bad been wasted, or converted, during tbe first administration ; nor, indeed, tbat they have ever been wasted or converted. From aught tbat appears in tbe bib, those sums of money remained in tbe bands of tbe administrator at tbe time of bis second appointment, and passed to tbe second administration. In tbe absence of any averment to tbe contrary, we must presume they did. This being tbe case, tbe sureties on tbe second bond are clearly responsible for them.—Phillips v. Brazeal, 14 Ala. 746, 752; Governor v. Robbins, 7 Ala. 79, 82; Townsend v. Everett, 4 Ala. 607; Moore v. County of Madison, 38 Ala. 670 ; Williams v. Harrison, 19 Ala. 277, 284.

It is also objected that this bib cannot be maintained, because tbe administration of C. H. Whitworth (tbe elder) has not been settled; and tbat therefore the administration of H. C. Whitworth, who was a distributee in tbe estate of tbe former, has not been completed, and hence cannot be brought to a settlement. It is urged, also, tbat this bib is multifarious, because it joins in one and tbe same suit demands against Mr. Obver growing out of each of tbe administrations on the estates of tbe two "Whitworths — - father and son — while the sureties of Oliver, who are also sued, are not liable for the administration of the estate of the elder.

Without intending, at this place, to decide whether or not this objection is well taken, if the pleadings were so framed as to claim relief on this ground, we have no hesitation in declaring, that the bill does not bring this subject before us in such form that we can regard it for any purpose. The only averment of the bill bearing on this question is in the following language: “That the said Wm. C. Oliver, as the administrator of Christopher H. Whitworth, the father of the said Henry C., will have and be entitled, on the final settlement and distribution of the estate of the said Christopher H., to hold and retain for the estate of the said Henry C., his intestate, about $2,347, which ought to be accounted for by him as administrator of Henry C., and distributed between the complainants as his heirs-at-law and distributees aforesaid.” This language, it will be observed, fails to inform us when Mr. Oliver became the administrator of Christopher H. Whitworth, and is silent on the question, whether the assets of that estate have ever come into his hands. It is only by inference that we can learn that the elder Whitworth died before the younger. Language so indefinite can not be the foundation of relief in equity; and hence we regard it as an immaterial averment, which can not affect the result of this suit in any way. As bearing on this, and possibly on another feature of this case (not noticed in argument), see Cookrell v. Gurley, 26 Ala. 405. We regard this bill, in its present form, as simply an attempt to procure a settlement of Mr. Oliver’s second administration of H. C. Whitworth’s estate.

The chancellor ruled, that Mr. Oliver, by accepting the office of probate judge, had vacated his office as administrator ; that the two offices are incompatible; and that, in such case, no proceedings could be instituted to bring Mr. Oliver to a settlement, until an administrator de bonis non should be appointed. We think, in thus holding, the distinguished chancellor erred. Administration is a trust, and is not an office, within the meaning of the rule invoked.— 1 Bouv. Law Dic., tit. “administrator”; ib. tit. “incompatibility”; 2 ib. tit. “office and officer”; People v. Carrique, 2 Hill, (N. Y.) 96; Ang. & Ames on Corporations, § 434; Hill on Trustees, 66; 7 Bouv. Bacon, 279, 313-14; 5 Com. Dig. 204.

It is probable that, wben this case returns to the court below, it will become necessary to decide whether the sureties of Mr. Oliver, who are parties to this suit, are chargeable with the funds which came to his hands during the administration in chief, provided those funds were used, converted, or wasted by him, before his second appointment ; in other words, whether it was his duty, as administrator de bonis non, to reduce to his possession the effects and assets which had come to his own hands as administrator in chief; and if so, being both debtor and creditor — that is, the right to demand and the obligation to pay being co-existent in him at one and the same time— whether the debt is extinguished by presumption of its payment.

This question is not free from difficulty. It was settled in this State,-many years ago, that an administrator de bonis non could not compel the administrator in chief to pay to him the money which had come into his hands by virtue of the administration ; but that a different rule prevailed as to property of the estate which remained in specie. For such property, the succeeding administrator may maintain an action.- — See Willis v. Willis, 9 Ala. 721; Price v. Simmons, 13 Ala. 749; Judge v. Price, 6 Ala. 36. This disability gave rise to the acts of 1845 and 1846. — Pamph. Acts, 1844-5, p. 166; ib. 1846-6, p. 14.

In the cases of Judge v. Price, and Willis v. Willis, above cited, are expressions, not necessary to the decision of those eases, which are possibly subject to criticism. We allude to the statement, that “the authority of the administrator de bonis non extends only to such of the personalty of his estate as remains in specie, tinálteredor unconvertedbj his predecessor, and so far only can he be regarded a trustee for distributees and creditors.” — See, also, Gould v. Hayes, 19 Ala. 450, and authorities there cited. We do not, and will not, controvert the correctness of the real point decided in those cases — namely, that the administrator de bonis non, in tbe absence of tbe statute of 1848, could maintain no action to recover from bis predecessor any. of tbe effects of tbe estate, except sucb as remained “in specie, unaltered and unconverted by bim.” Tbis point expressly arose in each of those cases ; tbe decision of it was necessary, and it was decided. Stare decisis. But, wben tbe court went farther, and limited tbe authority of tbe succeeding administrator, as is shown in tbe above extract from Willis v. Willis, it becomes a question if it did not trench on other statutes of force in tbis State. It is conceivable, that tbe legislature may have given to an administrator de bonis non no action to recover from bis prede-r cessor money which tbe latter bad received in administering tbe estate ; while a voluntary payment by tbe administrator in chief, to bis successor, would exonerate himself and bis sureties, and fasten a liability on lbs successor, to creditors and distributees. Tbis seems to result from tbe act of 1821, (Clay’s Dig. 222, § 9,) and the construction placed upon it in another well-considered opinion of tbis court. — See Skinner v. Frierson, 8 Ala. 915.

In Bogle v. Bogle, (23 Ala. 544,) it was held, that tbe administrator in chief discharged himself from liability, by paying over money in bis bands to bis successor; and tbis, anterior to, and independent of tbe act of 1846. — See, also, Willis v. Willis, 16 Ala. 659.

Tbe act of 1821 clearly contemplates, that an administrator who has resigned, or been removed, may pay to bis successor all “assets or effects which shall not have been duly administered or applied.” Tbe cases of Skinner v. Frierson, and Bogle v. Bogle, recognize tbe right of tbe resigned administrator to pay over sucb assets and effects, and thus discharge himself and bis sureties from all further liabilities, including suits then pending against bim. Tbe substance of tbis clause of tbe act of 1821 has been carried into tbe Code, sections 1718, 1719.

But it is, perhaps, not necessary to pursue tbis investigation farther. Tbe acts of 1845 and 1846 removed tbe disability under which tbe administrator de bonis non bad previously labored, and allowed bim to force bis predecessor to a settlement, and to obtain a decree against bim for tbe money assets not fully administered. So, the Code, which governs tbis case, and the act of 1858-4, are more full and complete on the subject, than the act of 1846. — See Code, ch. 10,p. 365, §§ 1876 et seq.; Acts of 1853-4, p. 24.

Under the Code, (§§ 1718, 1719, 1876, 1878,) it is not only the privilege of the administrator in chief to pay over to his successor the assets and effects of the estate in his hands, not fully administered, but it is his duty; and if he fail to do so, it is both the privilege and the duty of the latter to compel him. From this the following propositions result : Where an administrator in chief resigns, or is removed, or his office expires, before the administration is so far matured as to be ready for final settlement, and an administrator de bonis non has been appointed, it is the duty of the administrator in chief to account to the administrator de bonis non for all moneys in his hands, or converted by him, not paid out or duly expended in the administration ; and it is equally the duty of the administrator de bonis non to collect such funds, thus held, from the resigned or removed administrator in chief.

In all cases of indebtedness from one in his individual capacity, to an estate of which he afterwards becomes executor or administrator, we have held that the doctrine of presumed payment arises; or, in other words where the obligation to pay and the right to demand coexist, even for a moment, in the same person, the law presumes that the debt is paid, and will charge the administrator in his account with so much money assets actually received ; and this, without any reference to the solvency of the administrator. — See Childress v. Childress, 3 Ala. 752 ; Hampton v. Shehan, 7 Ala. 298 ; Purdom v. Tipton, 9 Ala. 914; Whitlock v. Whitlock, 25 Ala. 543; Weems v. Bryan, 21 Ala. 306; Wankford v. Wankford, 1 Salk. 299-306 ; Kinney v. Ensign, 18 Pick. 232; Ipswick Man. Co. v. Story, 15 Metc. 310 ; Joyner v. Cooper, 2 Bail. Eq. 199; Teague v. Denley, 2 McCord’s Ch. 210; Field v. Field, 1 McMul. Eq. 369 ; Vaughn v. Evans, Hill’s Ch. 428 ; Duffee v. Buchanan, 8 Ala. 27 ; Bogle v. Bogle, 23 Ala. 544.

In South Carolina, the doctrine has been carried much farther. In Enicks v. Powell, (2 Strob. Eq. 196,) it was ruled, that where the same person was administrator in chief, and afterwards administrator de bonis non, if he committed a devastavit during the administration in chief, the law would presume, on his appointment as administrator de bonis non, that the liability on the first administration was transferred to the second; and the persons authorized to bring him to a settlement might proceed against the second administration and its sureties, for such sum, as so much assets in the hands of the administrator de bonis non. That case is not distinguishable from this.

Our statutes have restricted the powers of executors and admiaistrators over property assets in their hands; and tills has wrought, in one phase of the question, a modification of the doctrine of presumed payment, in cases where the same person becomes both debtor and creditor. — See Kimball v. Bloody, 27 Ala. 137. But that modification has nothing to do with the present case.

We think there are reasons for a distinction between the present case and that of a person who fills the character of a common contract-debtor to an estate of which he after-wards became the administrator. The liabilities of an outgoing administrator are never fixed and certain; nor are they, generally, in such form as to be susceptible of reduction to a sum certain, without a settlement under the supervision and sanction of the court. At such settlement, the next of kin or legatees have the right to be present, that they may except to the account, appeal from the decree, &e. This doctrine of implied or presumed payment by an administrator in chief, to himself as his own successor, ignores all those provisions of the statute, as to fifing accounts-current, setting a day for settlement, and bringing by notice the parties in adverse interest before the court; provisions which were wisely inserted to prevent error and injustice, and to protect the interests of persons not sui juris. — See Code, pp. 355 et seq.

Another probable effect of this doctrine of presumed payment, if applied to cases like the present, would be to relieve the sureties of the administration in chief from liability for devastavits committed during the term of their responsibility, and fasten the same on the sureties of the administration de bonis non; an effect, not only repugnant to our notions of justice and equity, but opposed to tbe very name and theory of tbe trust, for tbe faithful execution of which they have bound themselves — the administration of the effects left unadministered by the administrator in chief,

This question is not distinguishable, in principle, from that which was considered in the case of Davis v. Davis, 10 Ala. 300. The office of executor of the will, and that of guardian to one of the legatees, were united in the same person. On the settlement of the guardian, the question arose, whether the share of the ward under the will was chargeable in the account. This court said, “When the offices of executor and guardian are united in the same person, he holds the estate in his hands as executor, and does not hold anything as guardian, which is not separated from the assets of the estate, and placed to his account as guardian. To ascertain the amount in his hands as executor, to which the ward is entitled, it is obvious a settlement of his accounts, as executor, would be necessary.” — See, also, Myers v. Wade, 6 Rand. 444; Broaddus v. Rosson, 3 Leigh, 12; Pratt v. Northan, 5 Mason, 108; Wallace v. Talliaferro, 2 Call, 447; Williamson v. Howard, 2 Rob. (Va.) 39; Swope v. Chambers, 2 Gratt. 339.

Another principle, however, may arise in this case. The administration in chief had expired many years before this bill was filed. By section 1874 of the Code, it is made the duty of an executor or administrator, who is removed, or resigns, or whose letters are revoked, or whose authority ceases from any cause, to file his accounts, vouchers, &c., for a settlement, within one month thereafter. It was equally the duty of the administrator de bonis non, if the estate was not ready for final settlement, to possess himself of the assets of the estate, in the hands of his predecessor, within a reasonable time. What will be, in every case, a reasonable time, we cannot positively affirm; (see Williams v. Harrison, 19 Ala. 284 ;) but we do not hesitate to declare that, in this case, there was ample time for Mr. Oliver, under his second appointment, to possess himself of the assets that were received by himself as administrator in chief. For failing to do so, he fixed a liability on himself and on his sureties as administrator de bonis non, which, those interested in the estate may proceed on, if they elect to do so. In the case of Morrow v. Peyton, (8 Leigh, 54-74,) the court of appeals of Yirginia laid down a rule, which we think eminently just and proper, as applicable to this feature of the case before us. One Morrow had been executor of the will of one Butherford, and died, leaving the estate indebted to him on account of the administration. After the death of Morrow, the executor, Worthington and Cookus took out letters of adminstration on the estate of Morrow, and of administration de bonis non on the estate of Butherford. Money assets of the estate of Butherford came into their hands, sufficient in amount to pay said indebtedness; but it did not appear that the funds had been, in fact, transferred from one estate to the other. The state of the accounts tended to show the contrary. One question made and considered was, whether the debt from the estate of Butherford to the estate of Morrow should be presumed to be paid, and the liability transferred to the administrators of Morrow’s estate. The court — President Tucker delivering the opinion — stated the question thus: “ It is contended that, as the funds thus received by Worthington, of Butherford’s estate, were immediately applicable in his hands to the payment of the debt to Morrow, that application must be intended to have been made.” This question he proceeds to discuss, and, for reasons entirely satisfactory to us, he decides it in the negative. He adds, however, and so ruled in the cause, that the administrator ought to have made the appropriation; and that for omitting to do so, his sureties are responsible. In another place he stated, that the administrator and his sureties for the Morrow administration were responsible for not collecting the debt from the Butherford estate. The principle is well stated in the'head-note of the case, as follows:

“ Where the estate of one decedent is indebted to that of another, and the same person is administrator of both, and wastes assets of the debtor estate, which he was bound, but has failed to pay over to the creditor estate, the sureties for his due administration of the creditor estate are liable for such default and devastavit.” — See, also, Aylett v. King, 11 Leigh, 486.

The principle announced above is substantially supported by tbe decisions of this court, which hold that, if an administrator fail, or neglect, to collect an available claim of the estate, he thereby charges himself and his sureties with the amount of the claim thus lost to the estate. — See Duffee v. Buchanan, 8 Ala. 27; Milam v. Ragland, 19 Ala. 88; Hughes v. Mitchell, ib. 268; also, Willis v. Willis, 16 Ala. 659.

We hold, then, that it was Mr. Oliver’s duty to reduce the assets of the administration in chief — the estate being not fully administered — to his own possession as administrator de bonis non; and for failing to do so, the distributees may charge him and his sureties as administrator de bonis non, if they elect to do so. If Mr. Oliver’s administration of the estate of C. H. Whitworth had so far progressed as to be ready for settlement and distribution, it was then his duty, as administrator, to settle that estate, and to pass the proper distributive shares over to the distributees. It was also his duty, as administrator of H. C. Whitworth, to reduce to his possession all the available assets of that estate. For neglecting to do so within a reasonable time, he and his sureties are, at the election of the distributees, liable as above indicated.

What we have declared above is independent of the inquiry, whether the assets were wasted or converted before the termination of the administration in chief; or, whether Mr. Oliver was or was not solvent at that time. The law clothes him with the right and duty — the estate not being fully administered, and not being ready for settlement — of passing the liability from one administration- to the other, whether he had retained the money on hand, or had previously wasted or converted the same. — See Code, § 1881; Davis v. Davis, 10 Ala. 300.

The decree of the chancellor is reversed, and the cause remanded.  