Plaintiff's intestate, Albert Brown, was killed while working in the ore mine of defendant by slate falling from the roof of the mine.
This suit is brought by Cordelia Brown as administratrix of his estate against the defendant under subdivision 1 of section 3910 of the Code of 1907, known as the Employers' Liability Act. The complaint averred that the roof of the mine was defective.
The deceased, Albert Brown, left a father and mother who resided in Alabama, and his wife. Cordelia Brown, who was residing at the time of his death in Ohio with her parents, and had been there, away from her husband, for nearly two years previous to his death. The deceased left no children or their descendants. One child was born to him and his wife, but it died before Albert Brown.
Dave Brown, father of Albert Brown, 19 or 20 days after Albert Brown's death, was appointed administrator of his estate by the probate court of Etowah county, Ala. On the same day of his appointment the defendant paid him as administrator $500 in full *Page 22 settlement of the claim against defendant growing out of the death of Albert Brown, and he signed a written release in his individual name; but the release recited it was paid to him as administrator of the estate of Albert Brown, deceased.
Cordelia Brown, wife of deceased, made application on August 12, 1919, to the probate court of Etowah county, Ala., for letters of administration on his estate; and on August 20, 1919, made application to remove Dave Brown as administrator, and to appoint her administratrix of said estate. The probate judge of said county revoked and annulled the letters of administration issued to Dave Brown on September 11, 1919, and appointed her as administratrix on September 18, 1919.
The defendant pleaded the general issue and many special pleas, to only two of which the attention of this court is called. The special pleas 6 and 12 set up that before this suit was commenced the defendant settled and compromised the cause of action attempted to be set up in this complaint with Dave Brown, the then duly appointed, qualified, and acting administrator of said estate.
The plaintiff files two replications to each of said special pleas. Each replication sets up fraud between defendant and Dave Brown, as administrator, in said settlement, and sets up facts constituting the alleged fraud, and each replication also avers:
"That she has not received from said D. B. (Dave) Brown the sum of $500, nor any part thereof, nor has she at any time in any way whatsoever ratified the said settlement, and that she has constantly opposed the settlement for such a grossly inadequate amount, and that she is now opposing such alleged settlement."
The defendant demurs to each of the replications on the following, and many other grounds: The replication does not aver that plaintiff, or any one for her, has ever tendered to defendant said $500, or any part of it; "there is no averment that the defendant has been placed in statu quo;" and there is no averment that plaintiff or any one for her has ever offered to put the defendant in statu quo.
The plaintiff can affirm or disaffirm the contract, if fraudulent. If plaintiff disaffirms, it must be done as early as practicable after discovery of the fraud. This court has established this rule:
"The person who would disaffirm a fraudulent contract must return whatever he has received under it. This is on a plain and just principle. He cannot hold on to such part of the contract as may be desirable on his part and avoid the residue, but must rescind in toto, if at all. * * * This rule prevails in courts of law as well as equity." B. R., L. P. Co. v. Jordan, 170 Ala. 530, 54 So. 280; Stephenson v. Allison,123 Ala. 439, 26 So. 290; Harrison v. Ala. Mid. R. R. Co.,144 Ala. 256, 40 So. 394, 6 Ann. Cas. 804.
The plaintiff by these replications seeks to disaffirm on the ground of alleged fraud in the contract made and release given by Dave Brown as administrator of this estate to defendant for $500; but plaintiff fails to aver that the $500 has been returned or offered or tendered to defendant, or that she has returned to defendant what the estate received under the release. She avers in her replication:
"That she has not received from said D. B. Brown the sum of $500, nor any part thereof, nor has she at any time or in any way whatsoever ratified the said settlement."
Is this a sufficient averment to answer the rule of law that the estate of deceased must return whatever it has received under it — the alleged fraudulent contract or release — before it can disaffirm the contract and maintain the suit for the same alleged cause of action?
Dave Brown, the father of deceased, within 40 days after decedent's death, applied for and obtained letters of administration on his son's estate. The widow, under section 2520, had the first right, and Dave Brown the second right. The widow within the 40 days applied to the court and had letters of administration revoked to Dave Brown, and granted to her, as the law allowed, she not having waived her right thereto. Section 2522, Code 1907.
The issuance of letters of administration to Dave Brown was not void, but voidable. The widow by seasonable application within 40 days after the death of Albert Brown had the right to have letters of administration to Dave Brown revoked and to be appointed administratrix of the estate, she being competent to serve. Childs v. Davis, 172 Ala. 266, 55 So. 540; sections 2520, 2522, and 2530, Code 1907; Carr v. Ill. Cent. R. Co.,180 Ala. 159, 60 So. 277, 43 L.R.A. (N.S.) 634.
"Letters * * * of administration * * * granted by any court having jurisdiction are conclusive evidence of the authority of the person to whom the same are granted, from the date thereof until the same are revoked; and when granted, such letters * * * extend to all the property of the deceased in the state." Section 2530, Code 1907; Johnson v. Kyser, 127 Ala. 309,27 So. 784; Garrett v. Harrison, 201 Ala. 186, 77 So. 712; Kling v. Connell, 105 Ala. 590, 17 So. 121, 53 Am. St. Rep. 144; Barclift v. Treece, 77 Ala. 528.
One replication to said pleas avers that the bond of the administrator, Dave Brown, was approved with only one surety, and the law requires two. While the statute requires the bond to be signed by at least two sufficient sureties or a sufficient guaranty or surety company, still, if only one individual surety signs the bond, this is an irregularity that does not render the appointment of the administrator void. The bond is binding on the *Page 23 one surety and principal. Steele v. Tutwiler, 68 Ala. 107; Cunningham v. Thomas, 59 Ala. 158; Ex parte Maxwell, 37 Ala. 362, 79 Am. Dec. 62; section 2540, Code 1907.
These replications to pleas 6 and 12 do not question the jurisdictional right of the probate court of Etowah county to grant the letters of administration on the estate of Albert Brown, deceased. The court granted the letters to Dave Brown within 40 days after the death of the intestate: this was voidable, and not void. The defendant paid this administrator Dave Brown before his letters were revoked $500, in full settlement and release of matters involved in this suit.
When the letters of administration of Dave Brown were revoked by the court, it was his duty "on demand to deliver to the rightful administrator," the plaintiff in this case, "all the assets of the deceased which may be in his hands, and render an account on oath of all his proceedings to the probate court." Section 2529, Code 1907. After Dave Brown was removed and his letters of administration revoked, he "must within one month after his authority ceases" file his accounts, vouchers, and statement of heirs and legatees for, and must make final settlement of, his administration of the estate Section 2692, Code 1907. The succeeding administratrix of the estate of Albert Brown, the plaintiff in this suit, must be made a party to such settlement. Section 2693, Code 1907.
If there remains any act of administration to be done, other than making the settlement and distribution, and there is a succeeding administratrix, as in this case, a decree must be rendered in her favor for the amount found due on such settlement. Section 2694, Code 1907. If Dave Brown, after being removed as administrator of said estate, fails to make settlement within the time required by law, "the court may, on its own motion, or on application of any party in interest, compel him to do so by attachment." The plaintiff in this suit on proper application to the probate court of Etowah county could have the court compel Dave Brown to settle his administration of the estate. Section 2697, Code 1907.
The $500 damages paid Dave Brown as administrator was not subject to payment of debts or liabilities of the estate, but should be distributed according to the statute of distribution. Section 3912, Code 1907. The widow, Cordelia Brown, the administratrix, is the only distributee of personal property of the estate of Albert Brown, her husband, there being no children. Section 3763, Code 1907. On settlement of Dave Brown's administration of the estate of Albert Brown, deceased, the $500 paid him by defendant should be delivered to plaintiff, Cordelia Brown, as administratrix, or individually; she has the right, and it is her duty under the law, to compel him (Dave Brown) to settle. This $500, if she disaffirms the settlement, should be returned to or tendered defendant. Under the statute, when death results from the injury, the administrator only can sue. Section 3912, Code 1907; Ex parte L. N. R. Co., 124 Ala. 547, 27 So. 239.
The plaintiff, desiring to disaffirm this settlement of the former administrator on the ground of fraud and insufficiency of amount paid, should have demanded the $500 of Dave Brown as administrator, and, if he gave it to her, then she should have delivered it or tendered it to the defendant. If she demanded it, and he refused to give it to her, or if he and the surety on his bond were insolvent, and it could not be made out of them by the exercise of due diligence, or for some other good cause she could not secure the $500 for defendant, on account of defendant knowingly paying it to an insolvent administrator with an insolvent bond, with fraudulent intent, if true, then the replications should set up such facts, showing the $500 was paid to defendant or tendered to defendant before suit was filed, or aver facts setting up sufficient legal excuse for failing to do so. Plaintiff avers she has not received the $500 nor any part of it. The facts averred in the replications are not sufficient.
The settlement averred in the pleas is rejected, disaffirmed, by the replications on the ground of fraud, and the amount paid being insufficient. The replications aver no facts showing a return of the $500 to defendant. They aver no facts showing efforts to secure it in order to return it to defendant, and failure due to wrong of defendant in knowingly paying the $500 to an insolvent administrator, with insolvent surety on his bond, with fraudulent intent to injure the legal distributee, if true. The replications aver no facts showing legal excuse for not collecting from the former administrator the $500 paid him in settlement of the claim and returning or offering it to the defendant.
To hold otherwise would permit this administratrix to settle the claim with defendant, resign or be removed, and let another be appointed. Then a new suit could be filed. When the defendant pleaded to it settlement with the former administratrix, the plaintiff could reply and aver fraud in the settlement, and that "he has not received the money or any part thereof." In this way the defendant could be continually vexed and jeopardized with trials, and these removals and resignations of administrators after settlements be continued and new suits begun for the same cause of action indefinitely. The power and authority to collect the $500 from the preceding administrator is given by law to this administratrix as such, or to her individually. She should exercise that power and authority, collect it, *Page 24 and return or offer it to the defendant or aver and show a legal excuse for failing to do so. The said demurrers to each replication should have been sustained on the grounds hereinbefore mentioned. Birmingham R., L. P. Co. v. Jordan,170 Ala. 530, 54 So. 280; Stephenson v. Allison, 123 Ala. 439,26 So. 290; Harrison v. Ala. Mid. R. Co., 144 Ala. 256,40 So. 394, 6 Ann. Cas. 804; Ex parte Marler, 204 Ala. 342,86 So. 108; U.S. Cast I. F. Co. v. Marler, 17 Ala. App. 358,86 So. 103; Rabitte v. Ala. G. S. R. Co., 158 Ala. 431,47 So. 573.
"The damages recovered are not subject to the payment of debts or liabilities, but shall be distributed according to the statute of distributions." Section 3912, Code 1907.
The deceased left a widow and no children. His father and mother are still living. The widow, there being no children, is entitled to all the personal estate. Section 3763, Code 1907. Divorce bars the wife of her dower and of any distributive share in the personal estate of her husband. Section 3816. Hence those charges directing verdict for nominal damages if the jury believed she, the widow, abandoned the deceased, with no intention of returning and without support from him during the time, were properly refused by the court. There was no evidence that they were divorced. Sections 3816 and 3912, Code 1907.
The evidence was in conflict on the question of fraud and conspiracy. From the evidence it was for the jury to say whether Dave Brown as administrator signed the release for $500 in full settlement of the cause of action bona fide or not with the defendant. There was evidence tending to prove the replications of the plaintiff to pleas 6 and 12. These replications charged fraud and conspiracy. This question was properly left to the jury. The charges taking it from them were properly refused. These charges are set out in assignments of error numbered 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 20, 21, and 22.
The evidence shows that O. R. Hood was one of the attorneys for the defendant; that he was present in the probate court when Cordelia Brown was seeking to have the court set aside and revoke the letters of administration issued to D. B. Brown on the estate of Albert Brown, and to appoint her administratrix of the estate. The evidence showed he was there representing the defendant in that proceeding. The defendant was not a party to that proceeding. Its attorney appeared as amicus curiæ; then stated:
"I am not going to make any bones about it. I am here to protect the interest of the Alabama Company."
It was not proper to allow the testimony as to what the defendant's attorney said and did in that proceeding. It does not tend to show fraud.
The appointment of D. B. Brown, the father of the deceased, as administrator of the estate of Albert Brown by the probate court of Etowah county, within 40 days after his death — the deceased leaving a widow — was voidable, and not void. Childs v. Davis, 172 Ala. 266, 55 So. 540; sections 2520 and 2522, Code 1907; Garrett v. Harrison, 201 Ala. 186, 77 So. 712. Hence the following charges state correct propositions of law, but in their proper application to the issues in this cause needed amplification in order to avoid some tendency to mislead:
"If you believe the evidence, the appointment by the probate court of Etowah county of D. B. Brown, as administrator of the estate of Albert Brown, deceased, was voidable, and not void.
"If you believe from the evidence that the father of Albert Brown was appointed administrator of the estate of said Albert Brown 18 days or 20 days after the death of said Albert Brown, then I charge you that the probate court of Etowah county had authority to make such appointment."
The evidence shows that Albert Brown, the deceased, was getting $3.50 per day at the time of his death. His age from the testimony at that time was from 20 to 26 years. His health was good. The evidence tended to show he worked regularly. He married Cordelia Brown in 1916. They had one child. It is dead. His wife was living in Cincinnati with her father and mother at the time of his death. She went there November 15, 1917. He was killed July 23, 1919. His wife testified that she went to Cincinnati because her husband thought he would have to go to the army.
"He told me to go up there and stay and he would come. Up to the time I left he had been supporting me and my child. I consumed about all he made at that time. I think he made $2.20 at that time. I got all of it outside of what I paid for house rent and grocery bill. I corresponded with him after I left. He did not send me any money while I was up there. I intended to come back to him. He was in good health. He worked regularly. I was afraid that Albert would go to the army. He did not ask me to keep him from going. * * * I signed his questionnaire papers, and sent them back from Cincinnati to the local board at Gadsden, Ala. I knew where he was staying. I found out then he had not gone to the army. He did not ask me to come back. I did not go up there to come back. I thought he would come up there; he said he would. I made no arrangements to come back at any time."
The deceased, from the evidence, supported in 1917 the wife, child, and himself on $2.20 per day. He was earning $3.50 per day when killed. From the evidence the jury could infer that he and his wife would have continued to live together if he had not *Page 25 been killed; that his wages were probably sufficient to support her and him with some surplus. This being true, all charges asked by defendant and refused by the court directing verdict for nominal damages only, if the jury believed from the evidence that the plaintiff was entitled to recover, were free from error.
As the case has to be reversed, it is not necessary for us to decide whether the damages assessed by the jury were excessive or not, under the evidence before us. James v. Richmond D. R. Co., 92 Ala. 231, 9 So. 335; L. N. R. Co. v. Fleming,194 Ala. 58, 69 So. 125; L. N. R. Co. v. Trammell, 93 Ala. 350,9 So. 870; Reiter-Connolly Mfg. Co. v. Hamlin, Adm'r,144 Ala. 192, 40 So. 280.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.