majority">WEAKLEY, O. J.

Tbe court below overruled tbe plaintiff’s demurrers to pleas 5 and 6, and thereupon tbe plaintiff filed a special replication to these pleas. Tbe facts of tbe case, out of which arises tbe main question of law presented for decision, .are fully presented by tbe pleas and replication, taken together. Those facts are that, after suit duly brought by tbe plaintiff against tbe defendant as executrix upon a claim which bad been properly presented, the executrix, having received assets sufficient to pay off all tbe indebtedness of tbe estate, including that due the plaintiff, and without declaring tbe estate insolvent or paying tbe plaintiff’s.debt, filed her accounts for a settlement of the administration and procured an 'order from the probate court finally discharging her from further liability for or on account of her execution-of tbe will; there being at tbe time she voluntarily obtained the order assets in her bands more than sufficient for tbe payment of plaintiff’s' demand. Tbe plea alleges that tbe defendant bad “delivered and sur*572rendered all assets in her hands as provided by law/’ which means, no doubt, that she had delivered the assets to the legatees, or to the probate judge for them. The pleas do not allege a resignation by the defendant, and are somewhat meager and obscure; but as the court overruled the demurrer to the pleas, no question as to their legal sufficiency arises on this appeal, taken by the defendant.

Treating them as sufficient, the question is whether the replication constituted an answer to them. Upon the principles declared and the reasoning employed in Whitfield v. Woolf, 51 Ala. 202, it must be held that the administratrix could not defeat the suit by ignoring the existence of the plaintiff’s demand, making final settlement, surrendering the assets either to the legatees or the probate judge, and obtaining a discharge from the probate court. . If such action upon the part of a personal •representative, administering a solvent estate, could defeat pending suits, creditors would, indeed, be in a sorry plight. The discharge of the executrix by the probate court from further liability cannot affect the plaintiff. The liability to him could not have been enforced in the probate court, since his claim was not in litigation in that court, and could not have been drawn within its jurisdiction without a report of insolvency. The replication was a complete answer to the pleas, and was no departure from the cause of action set up in the complaint. The pleas were not in bar of the suit, but in bar of its further maintenance; and the facts alleged in the replication were designed to defeat the pleas and to justify the further maintenance of the suit and to justify the further maintenance of the suit for a-recovery by the plaintiff upon the very cause of action in the com.plaint alleged. This was permissible and proper practice. — Whitfield v. Woolf, supra; Draper v. Walker, 98 Ala. 310, 314, 13 South. 595. The demurrer to the replication was properly overruled. .

Upon the contention of appellant that- there was a variance between the case alleged in the complaint and that made by the proof, it suffices to say that no charge was asked or objection made in the court below present*573ing the question of variance; and hence we are'not called upon to exprése an opinion in reference to this question. There was abundant evidence to support the verdict. Indeed, the jury, upon the evidence, might have allowed a larger sum than they did allow.. This court will not reverse the action of the lower court, refusing a new trial, in this state of the evidence. — Terrell Goal Co. v. Lacey, (Ala.) 31 South. 109.

No error appearing in the record, the judgment is affirmed. , . ;

Tyson, Simpson, and Anderson, JJ., concur.

Citation profile

Relationships

How this case has been treated — in progress