KYLE vs. MAYS, Use &c. of POND, 22 Ala. 692

UOLDTHWAITE, J. The first question presented upon the record, is, as to the correctness of the action of the court he-lo w in overruling the demurrer to the declaration. In this there was no error. The action was brought upon an administration bond, .suggesting a devastavit against the administrator.

It avers the execution of the bond, a final settlement of the estate by the administrator, the rendition of a decree against bim, in favor of the party for whose use tbe action was brought, as one of the distributees of the estate; that the decree is unreversed, and that the administrator did not truly administer the estate, but failed to pay such decree out of the effects thereof, or otherwise, and wasted and converted the same to his own use. These allegations are, in our opinion, sufficient to charge the obligors to the bond.

It is true, that a creditor at large of the estate cannot maintain an action against the administrator for a devastavit, until he has obtained a judgment tobe levied of the goods of his intestate, (Thompson v.

Searcy, 6 Port. 393, and i'n.,es there cited;) and the reason is, that the.representative ñas the right to require that the demand against the estate should be judicially ascertained, before he can be compelled to appropriate the assets to its payment; but when that has been done, and the claim fastened upon the estate by the judgment of a court of competent jurisdiction, the failure to apply the assets to its payment, is a breach of the condition of the bond, and an action can be maintained upon it without the issue and return of an execution. Thompson v. Searcy, supra.

Apply these principles to the question under consideration, and there is no difficulty in arriving at a correct conclusion. The final settlement and decree in the Orphans’ Court, was a judicial ascertainment of the debt, binding not only on the administrator, but his sureties, (Lampkin v. Heyer, 19 Ala. 227;) and the failure to pay such decree, the assets being sufficient, amounts to a breach of the bond; and the averment of these facts is all that is necessary to charge the obligors. The demurrer to the third plea was also properly sustained.

As we have already observed, when a demand is judicially ascertained against an estate, it becomes the duty of the administrator to pay it, if the assets are sufficient; and if he fails to do so, it is in law a devastavit, for which he and his sureties are chargeable, without the issue of an execution. If sfieh is the law, there can be no necessity for a demand, as he can discharge himself, either by the payment to the party obtaining the judgment, or to the clerk of the court in which the judgment is rendered. Murray v. Charles, 5 Ala. 678; Haynes v. Wheat, 9 Ala. 239.

If there was any error in admitting the approval of the bond as part of the record, it could not avail the plaintiff in error, as the execution of the bond was admitted by the failure to plead the appropriate plea, and, under the pleadings as they were, no proof of its approval was necessary. So also in relation to the appraisement and returns of the sale of the property.

We have already decided, that the decree of the Orphans’ Court in favor of a creditor after the decree of insolvency, in the absence of fraud, is conclusive upon the administrator and his sureties, not only as to the debt thus ascertained, but also as to the sufficiency of assets in his hands to meet it, (Watts v. Gayle, 20 Ala. 817;) and the same principle necessarily applies to a decree rendered on a final settlement in favor of a distributee. The amount for which the decree is to be rendered cannot be ascertained, without first determining the assets.

The decree itself being thus conclusive evidence of a sufficiency of assets, no other evidence was necessary; and the appraisement and sales of the property belonging to the estate, were simply redundant or superfluous evidence, and as such testimony could not have prejudiced the defendant, he will not be heard to complain of the error, if error it was. For the same reasons, there was no available error in admitting the evidence showing a demand of the moneys sued for, of the defendant below. No demand was necessary to render him liable.

Neither was there any error in the charge given, or refusal to charge as requested. The decree of the Orphans’ Court bore interest, (Clay’s Dig. 284 § 5;) and, as we have already seen, no demand of the administrator was necessary. The judgment is affirmed.