The State for the Use of Robert Garrett, Appellant, vs. Wm. Crawford and Jacob Edge, Appellees, 23 Fla. 289

Judge McClellan delivered the opinion of the court : This is a suit that was commenced by the appellant against appellees in the Circuit Court of Walton county, and transferred to Leon county, from which the appeal was taken to this court. This suit was commenced by Garrett, the appellant, against William Crawford and Jacob Edge upon a judgment obtained by Garrett August 23d, 1879, against William Crawford, as administrator de bonis non of Jesse McCullough, deceased, for the sum of $1,045.17 obtained in the Circuit Court of Walton county. An execution issued upon the judgment and was returned nulla bona.

And the pi'esent suit was instituted upon said judgment against William Crawford in his individual capacity and against Jacob Edge, one of Crawford’s sureties upon his bond, as administrator de bonis non of Jesse McCullough, deceased, to recover the amount of the judgment obtained by Garrett against Crawford, as administrator de bonis non of Jesse McCullough, deceased. To this suit Crawford, by leave of the court below, on March 16th, 1885, interposed a plea in bar of recovery against him and his surety, Edge.

This plea set up—1st, That upon the recovery of said judgment he made a written suggestion of the insolvency of the estate of Jesse McCullough, his intestate, to the County Judge of Walton county, from whose court his letters of administration had issued; 21., That under the order of said County Judge he filed a true and perfect

schedule of the'amount of assets in his hands; 3d. That thereupon said Judge made an order for the pro rata distribution of said estate among the creditors of said estate in which order of distribution the sum of $330 was ordered and adjudged as the plaintiff’s pro rata share of said estate, which order of distribution has never been reversed or appealed from and stands unrevoked; 4th.

That about the 28th day of April, 1880, after the said sum of $330 was awarded and adjudged to said Garrett, and before this suit was instituted, he, Crawford, was willing and ready to pay said sum to said Garrett, and would have done so but he refused to accept it; 5th. That he is still ready and willing to pay said sum of $330 adjudged to said Garrett, and now brings the same into court to be tendered and paid to said Garrett when he will accept the same. To this plea the plaintiff filed a general demurrer.

The court below overruled the demurrer, and plaintiff refusing to reply to said plea the court below gave judgment for the plaintiff for $330, the amount tendered and paid into court under defendant’s plea. The plaintiff from these rulings prayed and prosecuted his appeal to this court. The only error assigned is the overruling the plaintiff’s demurrer to the defendant’s plea. Was there error in this ruling? We think not. .The plea we think sets up facts that constitute a complete defence to the action.

While the plea is one that grows out of the act of January 8, 1853, it is in the nature of a plea of plane administravit prmter. This plea by the allegations it contains substantially complies with the act for winding up and distributing insolvent- estates. There is a written suggestion of insolveney. There is a

schedule of the amount of the assets of said estate, there is an adjudication of insolvency by the County Judge, and a pro rata distribution by the County Judge alleged in the plea as being made by the County Judge of the county from which the letters of administration were granted. The amount of $330 .is ascertained and adjudged to be paid Garrett upon his judgment by the County Judge of the proper county. This amount is paid into the court and tendered to the plaintiff, Garrett. • The act of the Legislature,

section 33, 1828, page 176, provides that “ no security of an executor or administrator should be charged beyond the assets of the testator or intestate, by reason of any omission or mistake or false pleading of such executor or administrator.”

Section 30 of the act of 1828 provides that “ upon a suit against an executor or administrator suggesting a devastavit, he shall be charged of his own estate unless he shows that he has fully administered or to the extent that he received assets and not properly administered.” McO’s. Dig., chap. 2, secs. 68, 69, p. 96.

The act of December 23, 1852, chap. 528, Laws of Florida, enacts that where a judgment is obtained against an executor or administrator, and upon the return of execution issued upon it- that assets cannot be found in the possession of such executor or administrator, sufficient to pay and satisfy said execution in whole or part, that suit may be instituted in the name of the Governor of the State for the use of the person recovering such judgment,, and ¡against such executor or administrator, their sureties or either of them upon the bond of such executor or administrator, to which action the defendants may plead any plea or pleas and in support- thereof offer any evidence which would be legally advisable in any action against executors or administrators suggesting a devastavit.

These statutes are in pari materia and must be construed together. This rule will also apply to the statute of January 8, 1853, in regard to insolvent estates. An executor or administrator when sued as such before these acts could plead the general issue, the plea ofplene adminisüravit and the plea oiplene administravit prwter where they were sued suggesting a devastavit. The demurrer in this case admits the facts set up in the plea, and we think they are a complete answer to the plaintiff’s action. Judgment affirmed.

OPINION Rendered to His Excellency the Governor in the Year 1887, in the Matter oe the Executive Communication oe May 9,1887, Concerning the Power oe the Legislature to Pass Bills. The Justices of the Supreme Court are not authorized, under

section 13, of

Article IV, of the Constitution, to render an opinion to the Governor upon

section 21, of

Article III, of the Constitution, as to what character of bills, if any, the Legislature, at its session of 1867, is denied the power to pass, and'which, when submitted to the Governor, it will be his duty for that reason to disapprove. Executive Oeeice, Tallahassee, Fla., May 9,1887. To the Honorable the Justices of the Supreme Court of the State of Florida: If, in your judgment, it is a case in which your opinion can be properly required, I have the honor to ask your

interpretation of

section 21, of

Article III, of the Constitution, as to what character of bills, if any, the Legislature, at its present session, is, by said section, denied the power to pass, and which, when submitted to me, it will be my duty, for that reason, to disapprove, though said bills may be otherwise unobjectionable. Very respectfully, E. A. Perry. Supreme Court Room, State of Florida, Tallahassee, Fla., May 10,1887. Hon. Edward A. Perry, Governor of the State of Florida : Sir: Your communication was received to-day and has been considered by us. The question asked by you involves the construction of sec. 18, Art. IY, of the Constitution. The

section is as follows: “ The Governor may, at any time, require the opinion of the Justices of the Supreme Court as to the

interpretation of any portion oí this Constitution upon any question affecting his executive powers and duties, and the Justices shall render such opinion in writing.” Hnlike the Constitutions of some of the other States of the Union, which authorize the Governor, or either branch of the Legislature, to require the opinion of the Justices of the Supreme Court, our Constitution restricts such right to the Governor alone.

It further restricts the right of the Governor to require such opinions on questions “ affecting his executive powers and duties.” Is the opinion you desire one relatingto your “ executive powers and duties ?” The ex'act legal meaning of the word “ executive ” has been many times authoritatively fixed and defined. It means a duty appertaining to the execution of the laws as they exist. It would follow that the law must be enacted according to all the terms prescribed by the Constitution before the duty of executing it can exist.

Any duty imposed by the Constitution on the Governor with reference to a bill, before it becomes a law, is not an executive duty. The enactment of laws is a legislative duty, and when your Excellency is required by the Constitution to do any act which is an essential pre-requisite thereto, such act is legislative, and is performed by you as a part of tbe lawmaking power, and not as the law-executing power.

Ve are of the opinion that the question affects a legislative duty imposed by the Constitution, and believing that a compliance on our part with your request is unauthorized by the Constitution, we, with great respect for your excellency, beg to be excused from expressing opinions on the question submitted. Very respectfully, Geo. G. McWhorter, Chief Justice,