18 Ala. 374 | Ala. | 1850
1. This is not a case where the administrator is suing for the benefit of the other distributees, but the bill proceeds on the ground, that the settlement of the estate in the Orphans’ Court, and the ascertainment of the amount due in a proceeding to which all the parties interested were before that court, is binding upon them; and the amount being thus ascertained and the distributees, except Mrs. Fisher, having paid their respective portions, the complainant seeks to obtain a decree against her and her husband for the amount she should refund. Having paid the portions for which they were bound, the other distributors have no interest in the litigation between the complainant and Fisher and wife. The previous distribution having been equal between the distributees, each should refund, if either is bound to refund, an equal sum to the administrator.
2. The administrator’s right to retain out of the proceeds of the land for the amount due from the heirs of the estate, has no effect upon the question of parties. The widow, to whom dower has been assigned, has ho interest otherwise in the land, or in the proceeds thereof, when sold to pay the debts, nor will a recovery by the complainant increase or diminish this right of retainer as against the heirs. If the administrator has apportioned to the widow her share of the personal estate, he must look to her alone for the proportion which that share should contribute to his indemnity, in the payment of debts which he has been compelled to pay out of his own effects, by reason of the deficiency of the unapportioned assets.
The release of a part of her dower by the widow, in consideration of an exchange of slaves made by her with the heirs, does not entitle her to set aside the division made of the personal property, nor in any way change the condition of the parties with respect to this suit. The objection for want of proper parties should have been disallowed by the chancellor.
3. We come next to consider the merits of this controversy. It must be conceded as a general rule, that if an executor or administrator, with a knowledge of the existence of demands against the estate, pay out legacies or make distribution of the assets, he cannot recover back from the legatees or the distributees, to whom he has thus turned over the effects, any thing for his own indemnity, unless be has obtained from them refunding bonds. If, with such knowledge, he submits to pay legacies or distribute the property, the persons receiving the same have the right to regard it and treat it as their own. It is given to them absolutely, and closes the transaction between them and the administrator, &c. So that whilst a creditor of the estate, or an unpaid legatee or distributee, in case of a deficiency of assets of the estate to pay the whole, might proceed against the person receiving the share thus turned over, the personal representative would be foreclosed by his own act from doing so, as the court will not relieve him from the consequences of his own folly which he knowingly and voluntarily superinduces. — 1 Story’s Eq. Juris. 90-1-2, and notes. But to apply this harsh and stringent rule
In the case before us, the intestate had a large estate consisting chiefly of slaves and real estate. He died in December, and in a few weeks after his death, the division was made. It was highly beneficial to the distributees, at the beginning of the year, to have the slaves apportioned to them, so as to enable them to make their arrangements as to the proper conduct of their farming operations. The division and distribution occurring thus early, the administrator, who retained of the effects what would reasonably meet the demands against the estate, as he supposed, could not be presumed to have been as familiar with its affairs as he afterwards became. We grant the evidence shows he had some notice of the existence of the notes due to the Branch Bank and to others, for which the intestate’s estate, it seems, has been made liable by suit, but we think it very clear that he was not fully advised upon that subject. He was acquainted with the peculiarities of his father, his caution, his repugnance to going in debt, his inability to write his name; whereas, the notes for the payment of which the estate has been charged, were for near ten thousand dollars, and purported to be signed by him as security for one who was notoriously insolvent. Besides, they appear to have been signed by one who could write, and the administrator knew that his intestate signed by making his mark. All these facts taken together, we think, will satisfy any reasonable mind, that the administrator did not believe that these were the notes of his intestate, and that the circumstances fully warranted his incredulity. Moreover, when they were set up as subsisting against the estate, he promptly met them with his plea of non est factum, but was overcome by the testimony of the principal in the notes. Should he, under these circumstances, be compelled to pay the.judgments, amounting to upwards of thirteen thousand dollars, out of his own pocket, simply because under a mistaken view of the fact that such notes were made by his intestate, he has as a matter of favor or accommodation distributed the property among those entitled to it? We think
In Bomer’s Ex’rs v. Glendenning et al., 4 Mumf. 219, a bill was filed by the executor, alleging that a judgment had been recovered against him for thirteen hundred and ninety-one dollars and forty-six cents, as executor, for a debt due from his testator, and that previous to the rendition of the said judgment, be had distributed the property according to the will; that all the distributees had refunded their respective portions except the defendants. Judge Roane pronounced the decree, and reversing the decree of chancellor Taylor, considered the complainant entitled to recover a rateable proportion of the debt,' there having been no fraud or collusion between the executor and the party obtaining the judgment.
Near thirty years after this decision was made, the same point arose in the case of Gallega’s Ex’rs. v. The Attorney General, 3 Leigh’s R. 450, and Judge Tucker, the president of the Couit of Appeals, reviews the cases applicable to it, and concludes that in cases where the executor has divested himself of the assets without fraud or misconduct in the management of the estate, and has acted bona fide, with honest intentions, and witl - out any apparent advantage to be derived to himself from his errors, the tendency of modern decisions went to relax the severity of the ancient adjudications upon the subject, and he adds, “I am therefore inclined to think that there is no inflexible rule, which refuses to an executor, under all the circumstances, a right to recover back from a legatee an excess of advancement, which may have been made to him above his rateable proportion of his legacy. He then recurs to the well known distinction between a mistake of law and a mistake of fact, holding such case to fall within the relief afforded in respect of the latter. The point seems to have been well considered by him, and the authorities are cited and commented upon, which relieves us from the necessity of a more particular reference to them. — See also, Sel
Let the decree of the chancellor be reversed, and the cause remanded, that the amount which should rateably be charged against the defendants, according to the principles of this opinion,' may be ascertained and decreed to be paid the complainants* Decree accordingly.