Childress v. Childress, 3 Ala. 752

COLLIER, C. J. In respect to the plaintiff’s note for Ar-eola lots, it is by no means certain, that in the present case, any question can be raised upon it. But be this as it may, we think the Orphans’ Court very properly charged the amount of that note against the plaintiff, as cash. If an executor purchases a part of his testator’s estate, he is, after the expiration of the term of credit, chargeable with the amount as cash, in the same manner as if he had collected money or converted property belonging to it.

True, it is the duty of an exeeutor, to colleet the debts due the estate he represents; but there is no process by which he can coerce a collection of himself, and as he is the party who is both to pay and receive the money, the law will regard him as in possession of it from the time it became due. The case of Douthitt’s administrator v. Douthitt, 1 Ala. Rep. N. S. 594, is unlike the present. There, the administrator was not charged with his own note, but the notes of the debtors of the estate, remainiug in his hands as money.

This Court reversed the decree, holding that the notes should not have been considered as cash. The terms in which the debt due from McCargo, to the testator, are bequeathed, we think sufficiently indicate that it must bear the expense of its collection. It is the balance of the debt, or money, after deducting the defendants legacy that is given to the plaintiff, not a specific sum, or an amount equal to the balance of the note. And this conclusion becomes irresistible from an examination of the entire will.

The testator makes a disposition of his property to his wife and children, assigning to each, a portion, with great particularity; and as no disposition is made of any residuum, the fair inference is, that he had specifically devised and bequeathed his entire estate. If then the testator disposed of all his property specifically, an abatement of legacies would be necessary, if the expense of collecting the McCargo debt was chargeable upon the estate.

Such an idea cannot be favored; the reasonable intendment is, that the testator designed that each legatee should have what he gave them, and that the plaintiff should have whatever might be collected, or realized upon the note of McCargo, .after deducting the specific legacy to the defendant. .Such sum as might be retained by aitornies for professional services or be paid for Court costs, would not come into the hands of the executors; or if it did, it would come subject to the eharge, .and could not of course beeome liable to pay the bequest to the legatee.

By the terms, “ balance of the debt or money,” we •must then understand to have been meant, all that the note was worth to the estate, after deducting from it, the charge of one thousand dollars. That the testator never intended to give a specific sum to the plaintiff, is further shewn, by the fact, that the note was daily enlarging its amount by the accumulation of interest.

The account of the plaintiff for the collection of the note being disallowed, there remained in his hands, more than one thousand dollars, subject to the payment of the sum bequeathed to the defendant; and as her legacy was specific, and could not be abated, the last objection to the decree cannot be sustained. The first

section of the act of 1830, “to extend the powers ■of the County and Orphans- Court in certain cases and for other purposes” enacts, that “ all decrees' made by the Orphans’ Court on final settlements on the accounts of executors, administrators, and guardians, shall have the force and effect of judgments at law, and executions may issue thereon for the collection of the several distributive amounts against such executor, administrator, or guardian.” The second

section provides, that when distribution of real or personal estate is decreed, each ■distributee, heir or devisee, may have an execution or attachment, one or both, &c. against the executoi', administrator or guardian.

A statute amendatory of the act of 1830, was passed in 1832, which enacts, that “the County Courts.on final settlements of executors, administrators and guardians, shall assess and insert in their decree, the amount of their distributive share.” And further, “ whenever any execution shall have issued on any decree made by the Orphans’ Court, on final settlement of the accounts of exeeutors, administrators or guardians, and is returned by the sheriff “no property found” generally, or as to a part thereof, execution may forthwith issue against the securities of such executor, administrator or guardian.

Although legatees are not specially designated in the second

section of the act of 1830, yet the provisions of that statute clearly indicate that they are entitled to the benefit of the remedy it affords. A different construction would make it to. a great extent inoperative as it respects executors. But it is unnecessary to reason this point as we have heretofore taken the view of the act which is now intimated to be correct.

The fact'that the defendant is a co-executor, is no ground of objection to a decree' in her favor against the plaintiff, who has assets in hand to satisfy it In this proceeding, her charas* ter of executrix, is lost sight of, and she is regarded only as a legatee. True, if she has entered into a bond jointly with the plaintiff, to execute the testator’s will, upon the return of “ no property found” to an execution against the plaintiff, she cannot under the act of 1832, sue an execution against the sureties in the bond. But the right to an execution, cannot at all affect the regularity of the decree.

In the proceedings of the Orphans’ Court, there is then no error, and its decree is consequently affirmed.