Bonner v. Young

68 Ala. 35 | Ala. | 1880

BRICKELL, C. J.

The re-examination of E E. Young, without obtaining an order for that purpose, was irregular, and the deposition procured upon it, would doubtless have been suppressed, if a motion for that purpose had been made. But none appears to have been made, the appellants contenting themselves with the objections interposed, when filing cross-interrogatories, which were not called to the attention of the Chancellor, and upon which no action was invoked.

2. The statute renders every written instrument, the foundation of suit, self-proving, unless the execution thereof is denied by a verified plea, by the party who is charged with having executed it, or by whom it purports to have been executed.—Code of 1876, § 3036; Wimberly v. Dallas, 52 Ala. 196. The statute, it is true, is found in the chapter of the Code devoted to evidence, in proceedings in civil actions in coui ts of common laiu. The rules of evidence are, as to matters of fact, (not the mere manner of procuring and introducing it,) substantially the same in courts of law and of equity. The former .statute, of which the present is a substantial re-enactment, was held applicable as well to suits in equity as to suits at law.—Holman v. Bank of Norfolk, 12 Ala. 360. The fact of the execution of the bond by Jenkins not having been put in issue by a verified plea, must be regarded for all the purposes of this suit as admitted. We shall not, therefore, look into the. evidence, to ascertain whether it established that the subscription to the bond is his genuine signature.

3. The motive and purpose of the legacy of five hundred dollars, was the education, or a contribution to the expenses of the education of the legatee, at Erskine college. It was not the fault of the legatee, that it was not applied to that purpose. The application of it, or its payment to a guardian of the legatee, who was a minor, and by whom the application could be made, or if he was neglectful, compelled, was a duty resting upon the executors. It would be strange if the default of the executors could work a lapse or failure of the gift. There are no words of condition, no -qualification annexed to the legacy, and no gift over in any event. A legacy given to a person for a particular purpose, is not conditional; and if without fault on'his part, the intended appropriation becomes impossible, he will nevertheless be entitled to receive it. The reason is, that the gift being primarily for his benefit, the manner of its appropriation is but secondary ; does not enter into and form part of the substance of the gift, unless an intent that it should be so regarded is'clearly expressed, or may be matter of necessary implication.—2 Lomax Ex’rs, 141; Rowlett v. Rowlett, 5 Leigh, 29.

4. Until the assent of the executor, there is not in the absence of statutes providing otherwise, any remedy for the recovery of a legacy, elsewhere than in a court of equity. 3 Redf. Wills, 308. The statute of 1806, (Clay’s Digest, 226, § 27,) provided that a residuary legatee should have an action of account against an executor; and that “ any person having .a legacy bequeathed in any last will and testament, may sue for and recover the same, at common law.” Under the influence of this statute, it was held in Wood v. Wood, 3 Ala. 756, that as there was a concurrent remedy in law and in equity for the recovery of legacies, the statute of limitations applied in both forums; and that the lapse of six years from the time when a legacy ought to have been paid, was a bar to a bill in equity for its recovery. That statute was not carried into the Code, but in lieu of it the rule of the common law was enacted and declared, that an action at law can be maintained only upon proof that the executor has assented to the legacy.—Code of 1876, § 2634. It has long been the settled doctrine, that the statute of limitations cannot be pleaded in bar of a bill for the recovery of a legacy, for the plain reason that until a disclaimer, or repudiation, or disavowal, of which the legatee has notice, the executor holds in trust for the legatee, and there is no room for the operation of the statute — no adverse holding, or no hostile relation.—Ang. Lim. § 90; 3 Redf. Wills, 308. There was no assent of the executors to the legacies made known to the legatee; nor was there any disclaimer, disavowal or repudiation of the trust by them, of which the legatee had notice.

5. Nor can' the statute of limitations be invoked by the sureties. The time from which the bar of the statute is computed as to the sureties of a public officer, or of an executor, or administrator, or guardian, is from the omission or act of the principal, which fixes their liability.—Code of 1876, § 3226. Until there was a judicial ascertainment of the liability of the executors to pay the legacies, the trusts of the administration continuing, and an omission to discharge that liability there was no act or omission which fixed the liability of the surety.—Fretwell v. McLemore, 52 Ala. 124. Nor is there room for a presumption of payment of the legacies from the lapse of time. The lapse of twenty years from the time when a legacy becomes payable, without claim or demand by the legatee, and without recognition of the right by the executor, will doubtless create a presumption of payment of a legacy,' as it will of satisfaction of a judgment, bond, or mortgage, or the extinguishment of a trust. That period had not elapsed when the present bill was filed. We find no error in the record, prejudicial to the appellants, and the decree is affirmed.