86 Ala. 413 | Ala. | 1888
The claim of appellants originated as follows; Joshua H. Beadle and-William Echols, as execu
The land sought to be subjected constituted a part of a larger tract of land, which was sold by the testator in his life-time, and which Steele, as administrator, took and received from the vendee in compromise and settlement of the unpaid purchase-money. The compromise was reported to, and confirmed by the Chancery Court. Having been acquired by the personal representative, in payment of a debt due the testator, the land became assets of his estate, and subject to sale for distribution, or for the payment of debt, in the same manner as if it had descended or been devised. — Cruikshanks v. Luttrell, 67 Ala. 818.
On the annual settlement made by the executors in the Probate Court, in August, 1861, an allowance of twenty-five hundred dollars for special services was made to them. This
On this question, the character of complainants’ claim, the possession by the executors of personal assets which they could have appropriated to the payment of the claim, their voluntary payment of some of the legacies, their duty to pay the legacy to Mrs. Margaret Moore and her children, and the agreement under which the. surviving executor turned over the assets to the administrator de bonis non, are all proper matters for consideration, and materially affect the equity of complainants. It is well settled, .that an executor or administrator is not only authorized, but it is his duty, to apply to the payment of a debt due him by an estate which he represents, assets which came to his possession, and the title and ownership of which he can legally transfer. He has no volition or election in the matter; the law, by its own operation, makes the application; and no laches on the part of the
The land sought to be condemned was sold in February, 1868, under an order of the Chancery Court, and purchased by Mrs. Moore. By the will of the testator, a legacy of four thousand dollars was bequeathed to her, the interest on which she was entitled to use during her life, and at her death the principal to be equally divided among her children. In December, 1866, the Chancery Court had ordered Beadle, as executor, to pay the legacy to Mrs. Moore, on her executing bond CQnditioned that the principal should be paid to her children at her death; and if she failed to execute such bond within twenty days after the adjournment of the court, that he should pay the same to the register, to. be loaned out, and the interest paid annually to her. She failed to execute the bond, and the executor failed to pay the money to the register. The sale of the land, and its purchase by Mrs. Moore, was reported by the register to the court, and his report was confirmed. In his report, the register submits the mode of receiving the purchase-money of the land to the direction of the court, under a bill which had been filed by Mrs. Moore, asking directions as to the investment of the legacy. The court subsequently directed that the legacy should be invested in real estate, and the title
The failure of the executor to pay the amount of the legacy into the registry of the court, as ordered, can nót be attributed to a want of money. He had in his hands more than enough to pay the legacy, which he loaned out on interest, and thus converted. ¥e say converted, for, by the will, the executors were authorized to loan on interest only the money remaining after paying the debts and legacies. Also, the executors paid some of the pecuniary legacies without, so far as appears, requiring refunding bonds, with knowledge of their claim, and thus disabled themselves to compel such legatees to refund. — Moore v. Lesueur, 33 Ala. 237. Also, Beadle, the surviving executor, resigned his executorship, and turned ovér to the succeeding representative assets of the value of more than twenty thousand dollars, consisting principally of notes taken by the executors for money loaned by them, under an agreement that he would resign, and turn over all the assets of the estate to his successor, and make a final settlement, and, if any balance be found in his favor, that a decree should be rendered payable out of the first money collected. Considering that the executor had the right of retainer, and possession of assets more
Tbe right of a creditor to compel a legatee, whose legacy has been paid, to refund, when tbe assets of tbe estate are insufficient to pay tbe debts, or have been -wasted by tbe representative, may be lost by a course of dealing wbicb renders tbe assertion of such right inequitable. — 2 Williams on Ex’rs, 1501. When all tbe facts and circumstances discovered by tbe record — Beadle’s conduct, and course of dealing, bis having disabled himself to compel some of tbe legatees to refund — are considered, and tbe foregoing principles of equity applied to tbe various aspects of tbe case, and their co-operative' effect regarded, to subject to bis claim property in tbe bands of particular legatees, to whom it bad been delivered by tbe administrator de bonis non in satisfaction of their legacy, wbicb legacy Beadle bad been ordered to pay, and failed when be bad sufficient assets to do so, and impose tbe entire burden of tbe claim upon such legatees, would be inequitable, though actual wrong or fraud was not intended.
Affirmed.