[Whitfield v. Woolf.]

executors, by a transfer of the assets he has received to his co-executor, to exonerate himself from liability. Whatever may be the law on these points, an executor or administrator, who claims an exemption from liability to a creditor, by a resignation, and a settlement of his accounts, and a surrender of the unadministered assets either to a successor or a co-executor or co-administrator, must not have been guilty of a devastavit. He must have duly administered the assets which came to his hands, or have surrendered them to his co-executor or co-administrator, or to his successor. If he has been guilty of waste, or conversion, or a misapplication of the assets, he cannot be exonerated from liability for it; but to that extent must account to the creditor injured by it. When a sole executor or administrator resigns, makes settlement of his accounts, and surrenders the unadministered assets to a successor, a pending suit against him can, on motion, be revived against the successor. R. C. § 2284. The unadministered assets, all the creditor could have pursued, if there had not been a resignation, and a change in the administration, are still left within reach of his legal remedies. But if, by resignation, and a settlement of his accounts, the executor or administrator could absolve himself from liability for assets not administered, or wasted, or converted, or misapplied, the creditor would be, if not remediless, embarrassed in the enforcement of his rights. Generally, one executor or administrator is not liable for the devastavit of his companion, in which he does not participate. If the statutes authorize one of several executors, by resignation, to discharge himself from a pending suit, and the continuance of the suit against his companion, can he be held liable for the devastavit of the resigned executor? Can the resigned executor thus exonerate himself, and shift his responsibility? The case presented is even stronger. The appellee has voluntarily paid legacies in preference to debts, within the time allowed by law to creditors for the presentment of claims. Shall the co-executor be charged with this open violation of duty by his companion, and the guilty agent be relieved? Or shall both be relieved, and the creditor driven to the pursuit of doubtful, dilatory remedies in another tribunal, against the legatees who received payment? The law and common justice fix the liability where it belongs, on the executor who departed from the line of his duty, and preferred the legatees to creditors. If our statutes authorize one of several executors, by resignation, and settlement of his accounts, and a surrender of unadministered assets, to free himself from liability to a pending suit, and the continuance of the suit against the remaining executor, the resigned executor must place the assets not administered within reach of the creditor's judgment. He must

[Whitfield v. Woolf.]

surrender them to his co-executor against whom judgment can be obtained. If he does not, he is not entitled to a discharge from the suit. The replication was a full answer to the sixth plea, and the court erred in sustaining the demurrer to it. The settlement made by the appellee in the court of probate cannot affect the question of appellee's liability to the appellant. As to the appellant, that settlement is res inter alios acta. He had not the right, or the opportunity, to be heard in opposition to it.

The demurrer to the seventh plea should have been sustained. This plea confesses the payments to legatees, voluntarily, of a sum sufficient to have satisfied the debt of the appellant. These payments are averred to have been made with a knowledge of the solvency of the estate, and that there were other assets of the testator in the possession of his co-executor, sufficient to satisfy the debt of appellant, and all other debts against the testator. The payments to the legatees are averred to have been made without notice of, and in ignorance of the existence of the appellant's claim. The plea also avers the resignation of the appellee, and a settlement of his accounts in the proper court. The resignation and settlement were after the commencement of this suit, and it is not averred that the appellant's claim was not presented within the period prescribed by law.

When the appellee made the payments to the legatees, voluntarily, leaving debts unpaid, if such payments were made within the period prescribed for the presentment of claims, he committed a devastavit. He perverted the order of appropriation of the assets prescribed by law. His knowledge of the solvency of the estate cannot change the character of his act. It remains a devastavit. If he had reported to the proper court the solvency of the estate, and made the payments under a decree of that court, the statute reserves his liability, declares such report and decree shall not be a defence to any action brought against him. His liability is not lessened because his act was voluntary, unsanctioned by judicial decree. Nor does the fact of assets sufficient to pay all debts, remaining in the hands of his co-executor, relieve him from liability. The law cannot tolerate that the creditor should be compelled to accept from another responsibility for the wrong of the appellee. It does not permit the appellee thus to exonerate himself from liability, and shift it to another. The allowance of the defence this plea presents, would open a wide door for the grossest frauds on creditors. A testator may, by express provision in his will, relieve his executor from giving security for the faithful performance of his duties. A creditor, or any one else having an interest, cannot require security from the executor in such case, unless he can show his interest is endangered 14

VOL. III.

[Matthews v. Hobbs ]

from a want of it. R. C. § 2005. A testator appoints two executors, one of whom is solvent, and the other insolvent; the creditor relies, as he may, on the responsibility of the solvent executor. But he pays away the assets he receives to legatees, resigns, settles his accounts with the probate court, where the creditor cannot be heard; and when sued by the creditor, he answers, that he has settled with the court of probate, paid away the assets he received to legatees, but left enough in the hands of an insolvent companion to meet the demand. The creditor, lured into security by a knowledge of the solvency of the executor, finds that his claim, which the law commanded to be paid before legatees could seek any recovery, is lost, and they are satisfied. The appellee cannot absolve himself from liability, except by showing an administration of the assets he received. It is not an administration, but maladministration, to make payments to the legatees before the payment of debts. The solvency of the estate, the want of knowledge of appellant's claim, eighteen months from the grant of letters testamentary not having expired, nor the existence of assets in the hands of, or for which the co-executor may be responsible, sufficient to meet the demands against the testator, cannot justify the payments to the legatees in preference to debts. He should have waited the expiration of the eighteen months, or have protected himself by a refunding bond. It was his own folly, or because he was willing to risk the payment of debts from other sources, to part with the assets to legatees before he could by law have been compelled; and he must bear the consequences. That on his settlement the court of probate discharged him from further liability, cannot affect the appellant. His liability to appellant that court could not, on that settlement, have enforced. It was not in litigation before that court, and could never have been drawn within its jurisdiction, unless the estate of the testator had been by the appellee reported insolvent.

For the errors we have pointed out, the judgment is reversed, and the cause remanded.

Matthews v. Hobbs.

Habeas Corpus to try Right to Custody of Child.

1. When appeal lies. An appeal does not lie from an order of the probate court on the hearing of a writ of habeas corpus to try the right to the custody of a child.

2. Custody of bastard child. The putative father of a bastard child, whose mother is dead, has no right to its custody; nor is habeas corpus the proper remedy to test the right to its custody; the chancery court is the proper forum to settle the controversy.

[Matthews v. Hobbs.]

APPEAL from the probate court of Limestone county, in the matter of a petition for the writ of habeas corpus, sued out by John Hobbs, against Patience Matthews, to test their respective rights to the custody of a bastard child, whose mother was dead, and who was in the possession and custody of the said Patience Matthews, his maternal grandmother, but was claimed by the said John Hobbs as his putative father. The petition for the writ was presented to the probate judge, in vacation; the writ was issued by him, and was duly executed and returned; and on the hearing the following judgment was rendered:

"Probate court, Limestone county, Alabama, August term, 1873. Claiborne Hobbs, ward; petition for habeas corpus. This being the day set to hear all questions as to the petition of John Hobbs for a writ of habeas corpus, directed to Patience Matthews, for the body of Claiborne Hobbs, ward, comes the said Patience Matthews, and files her answer and demurrer to said petition; which said answer is, on motion of the plaintiff, struck out as to all facts except those shown by the record; and the court, after carefully hearing the argument, overrules and dismisses the demurrer, and orders and adjudges that the custody of said Claiborne Hobbs be given to the said John Hobbs, and that the said Patience Matthews pay the costs of this proceeding. August 31, 1873."

From this judgment, or order, the said Patience Matthews now appeals, and here assigns it as error, together with several rulings of the court on the hearing, to which she reserved exceptions, but which require no particular notice.

R. A. MCCLELLAN, for appellant.

D. COLEMAN, contra.

Under re

PETERS, C. J.-[After stating the facts.] peated decisions of this tribunal, no appeal lies to this court from such an order as that from which the appeal here was sued out. It is not a final judgment or decree, conclusively settling any question, save the right of the person alleged to be illegally imprisoned, or restrained of his liberty, to be discharged from the restraint and imprisonment complained of. Guilford v. Hicks, 36 Ala. 95; Wilkinson v. Murphy, 20 Ala. 104. Upon the hearing on the writ, upon the return thereof, the officer by whom it has been issued can only "inquire into the cause of such imprisonment or restraint," and discharge the person restrained, if the restraint is illegal, or remand him to the custody of the person imposing the restraint, if the restraint is not illegal. Beyond this, the officer awarding the

[Baugh v. Ryan.]

writ has no jurisdiction to proceed. Rev. Code, p. 785, Habeas Corpus, §§ 4260, 4275, 4279, 4281.

The right to the custody of a child who is a bastard, and whose mother is dead, cannot be contested in this way. The child is interested in such a contest, and is entitled to a jury to determine the facts of the case, and to appeal, if there is error in the proceedings; which is not provided for in a case made on a petition for habeas corpus. The order of the court, awarding the custody of the child to the petitioner, Hobbs, was a misapprehension of the law. The child should have been discharged from the restraint, if the evidence showed that the restraint was illegal; and if it was above seven years of age, and had no mother or guardian to receive it, and was of sufficient health and discretion, it should have been permitted to select its own custodian. The father of a bastard child, merely as such, has no right to its custody. Schouler's Dom. Rel. pp. 340, 383.

The application for the writ of habeas corpus, in favor of the person imprisoned, or under restraint, can be repeated as often as the restraint is found to be illegal; and the mere discharge from the illegal restraint is, under our statute, the sole object of the writ. When the illegal restraint is removed, no one has the right to complain, save the person discharged; and if the person discharged is dissatisfied with the order, he can return to the custody complained of, of his own accord. For this reason, doubtless, our statute has not provided for any appeal in such a case, or any trial of the facts by a jury, which is necessary when any right of person or property is invaded, and the right is contested in a court of law. Const. Ala. Art. I. § 13.

Such a controversy as this is best settled by a court of chancery. Woodruff v. Conley, at January term, 1874.

The judgment of the court below is reversed; and as the appeal cannot be sustained, it is dismissed, with costs. Ala. 80, 84.

17

Baugh, Kennedy & Co. v. Ryan.

Appeal from Refusal of Mandamus by Circuit Judge to Tax Assessor.

Exemption of factories, machinery, &c., from taxation. The act approved April 23, 1873, entitled "An act for the encouragement of mining, manufacturing, industrial, mechanical, and commercial pursuits within the State of Alabama" (Sess. Acts 1872-3, pp. 72-4), was intended to exempt from taxation, for the period therein prescribed, not factories, buildings, machinery, &c., already. erected and in use, but such as were then in process of erection, and such as might be afterwards erected within the period specified; and the first section of