Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-29
F. Deaderick, Clerk.
No. so.


5. ID; Minor; Administrator, etc, VS.. t. S.
"eDD, Administrator de bonis non.
An administrator, who becomes such on the
death OF the original administrator is e4-
empted from suit for six months, from his
qualification. 1t is otherwise, where the for
mer administrator resigns.
40 case approved, Coleman VS.. Raynor, Col.
Code construed fl, a.974, a,2s7
Debt from the Circuit Court of Knox
county, Hon. E. T. Hall, presiding.
w. P. Washburn for plaintiff, cited
Atkinson VS.. Brooks, 10 Yer. 484 and 8
Col. 20.
Webb for defendants, insisted on the
distinction between an administrator de
bonis non, and the successor to one who
resigns, and cited Coleman VS.. Raynor, 8
Col. %, 29, and l Bow. L. D., page so.
2 Bl. Com. SOC.
OPINION.
This is an action of debt, commenced
inthe Circuit Court of Knox county, by
plaintiff against defendant as administra-
tor de bonis non. Defendant pleaded in
abatement, that the suit was commenced
within six months after his qualification
as administrator.
Plaintiff demurred to the plea, because
it does not alege, that the suit was
brought within SIX months after the quail
ifieation of his predecessor. The court
overruled the demurrer, and the plaintiff
declining to reply to the ples, the cause
was abated.
The question raised is, whether an adj
ministration dc bonis non is exempted, by
the statute, from suits for six months
after his qualification, in the same man.
ner that the original admins rator is ex-
empted.
The solution of this question depends
upon the construction of the words
Executors and Administrators, as used
in 1874 of the Code. The language of
that section is, executors and Admins
traitors shall have six months from the
date of their qualification, to ascertain the
situation of the deceased's estate, and to
arrange and settle it without being liable
to suit and costs" etc.
The words executors and administra-
tors, F" include administrators de bonis
non," Shackleford VS.. Runysn Z Hum.
141. They include also administrator )
appointed upon the resignation of the
original administrators, Coleman vs.. Ray
nor, Col. 20.
In the last named case, it was decided
that an administration, granted upon the
resignation of the original administrator,
10 continuation of the original admins
tration, and for that reason, the time,
from which the exemption from suits
commences, is the date of the qualiics-
ton of the original administrator. But
the court declines to decide, whether the
same rule obtains, in the case of an sd-
ministratOr appointed to succeed a de-
ceased administrator. They confine the
definition of an administrator de bonis
non, to one who is appointed upon the
death of the original administrator, whilst
they designate one appointed to succeed a
resigning administrator as statutory ad
ministrator; but whether there is any dis
tinction between the character, rights
and liabilities of the two kinds of admin
istratOrs, they do not determine. They
conclude, that the reason of the act, ex-
empting administrators and executors,
from suit and cost for six months, does
not apply to the latter class of administra-
tors, because, as the resigning administra-
tor is required to settle and pay over to
the new administrator the balance of
money, property aud effects in his
hands, he is furnished with information
touching the situation of intestate's estate,
Immediately upon taking upon himself
the administration thereof.
We concur in this reasoning, and in the
conclusion, that the provisions of section
1924, of the Code, do not apply to the
case of an administrator whose predeces-
sor has settled with the County Court,
and has delivered over the assets in his
hands to his successor. Although the
general language of the Code, section
2,274, embraces and includes this kind of
administrator, yet this section and section
2,237, providing for the resignation of an
administrator and the appointment of his
successor, must be construed together, and
upon such construction, we think, it was
not the intention of the Legislature that
an administrator, appointed in pursuance
of section 2, 237, should be exempted from
suits for six months from his qualifica-
lion. But there is no statute providing
for the appointment of successors to ad-
ministrators who may die before they
have closed their administration. AS al
ready shown, they fall within the Ian
guage of section 2,274, of the Code, aad
unless satisfactory reasons to the contrary
can be found, they are exempt
from suits for SIX months after
qualification in like manner as the Original
administrators. No such reasons are to
be found in any other provisions of the
Code, the reason applying TO appointments
under 5 2,237, having no application, but,
on the contrary, the same reasons usually
exist for exemption from suits, in cases
of administrators appointed TO succeed
deceased administrators, as in cases of the
original administrators. The exemption
is given, in the latter case, to enable them
to ascertain the situation of the deceased's
estate, and to arrange and settle it without
being liable to suit and costs. In most
cases it is equally necessary that an admin
istrator, appointed to succeed a deceased
predecessor, should have time to ascertain
the situation of the unadministered estate
as that the original administrator should
have it. As the Legislature has made no
distinction on this subject, between two
kinds of administrators, we are justified
in concluding that no distinction was in
tend d to be made; and, hence, that an
administrator, who becomes such, ON the
death of the original administrator, is ex-
empted from suit tor six months from the
date of his qualification.
This construction may result in occa-
sionsl inconvenience and delay, in the
settlement of estates, but it is result
which can be remedied only by the Legis-
ture There was no error in the court be-
low, and the judgment is affirmed.
NICHOLSON, c. ].
A true copy.
Test: ]. F. DBADERIcK, Clerk.