70 Ala. 607 | Ala. | 1881
There has been in practice some embarrassment'and much of • expense, resulting from the rule, in a court of equity, that, on 'the- hearing, the estate of every der ceased person having an interest in the suit must be represented. ■ That. there might be a' representative of deceased parties, whose interests were rather nominal than real, causes have been-delayed, and the partiés. interested in their prosecution have been driven to the expense of air administration, when administration was in fact a mere ceremony. The rule has, in some' cases, been greatly relaxed,• and administrations dispensed with' sometimes, when the only duty of the representative was-to receive with one-hand, and pay over with the other to ascertained parties. A -case of frequent .occurrence, in wlncli a court of . equity in this State has been accustomed to dispense with anadmiuistrator, dealing with and decreeing directly to the parties in -interest, is-when the distributee of an estate dies, entirely free from debt, and his co-distributees are his ■ next of kin. Here, if there-was au -administration of the deceased distributee, his only duty would be collection and distribution; and the' parties entitled to distribution- being before the court, with the party bound to pay, the administration has been deemed a “useless ceremony.”—Fretwell v. McLemore, 52 Ala. 124; Jones v. Brevard, 59 Ala. 513. Abatements of suit by- the death of parties, -complainant or defendant, will occur; and all the rights and interest of 'the party- dying may be represented by parties ■ before the court, and yet a revivor in the-name of a personal rep resen tative be a necessity according to the rules of .the court.
To avoid delays, and unnecessary expense, from the general rule requiring the representation of every deceased party.having an interest in the suit, in England an act of Parliament provides, that when it appears that any deceased person, having an interest in the matters in question, has no legal personal representative, the court may appoint a repesentative for all the purposes of the suit, or may proceed in the absence of a representative.—2 Dan. Ch. Pr. 2593. It was from- this- act was probably borrowed our own statute, which authorizes' 'the Court of Probate, or the Court of Chancery, when, an estate of a deceased- person must be represented, and there is no executor or administrator of such estate, or the executor or adminis-' trator is adversely interested, to appoint an administrator ad H-
The case made by the bill, as was apparent from its inspection, was within the terms of ’the statute. .• There was an ad-’ ministrator of eaeh estate, duly appointed by'the proper tribunal. But his several duties compelled him into antagonistic relations, and adverse interests. It was one of the cases, of not infrequent occurrence, for which the statute intended to provide. There is no fact shown, tending to prove that the appointments of the administrators :ad litemwere improvident or unnecessary, and .the authority of .the register to make them is indisputable.
In this case, the administrators ad litem seem to have been very diligent in the .performance of. their duties. They were solicitors of the court, representing. themselves, or were re-pre
The statute (Code of 1876, § 2520), as it has been construed, modifies this rule of a court of equity. . It rpads: “ If any executor, or administrator, uses the funds' of-the estate for his own benefit, he is accountable for any -profit made thereon, or legal interest; and in making their returns,.they must state the sum so used, the time and profit of the same, if over legal interest ; or must expressly deny, on oath, that they have used such funds; and any party interested may contest the same.” The construction put upon this statute is, that prima facie an executor or administrator is chargeable - with interest, though with the utmost diligence he may-proceed in the administration to a final settlement. He is chargeable, not because it is a duty to invest or to make interest, but because of . the-presumption, that he has .used the. money, when by his own oath he does not repel it—Brazeale v. Brazeale, 9 Ala. 491; King v. Cabaniss, 12 Ala. 598; 1 Brick. Dig. 977, .§§ 891-900. It.is in this respect, subjecting the executor- or administrator to a prima faoie liability for the payment-of’-interest- on all moneys received, unless by his own oath he discharges himself, that the statute modifies the rule previously prevailing in courts'of equity. ,-Eor interest received, or -profit derived, he is liable by
In this case, the administrator made the statutory affidavit, in reference to the use of the moneys coming to his hands ; and it was uncontroverted. When, without unreasonable delay, an administrator or executor proceeds to a filial settlement, and on oath denies having Used the funds or moneys received by him, and the oath is hot controverted, it is the mandate of the statute, that he shall not be charged with interest. The court has no discretion, and all inquiry into his'liability is foreclosed.' — McCreliss v. Hinkle, 17 Ala. 459. This is, however, the extent of the operation of the statute. It was not intended -to shield the executor-or administrator from liability for negligence in delaying the final.settlement of an administration ; or for indefinitely, of his own volition, keeping moneys dead in his hands, while debts were bearing interest, which ought to have been paid, or the next of kin, or legatees, were suffering loss because deprived of. the use of money to -which in good conscience they were entitled .-Pearson v. Darrington, 32 Ala. 227; Powell v. Powell, 19 Ala. 909.
The statutory system of administrations is intended to promote a speedy settlement and distribution of the estates of the dead. Eighteen months is allowed to all persons, having claims against the estate, to present them to the personal representative ; and during, that period he can not be compelled to a final settlement and distribution. When that period expires, if there be not some special circumstance rendering it unsafe, or injudicious, he ought to proceed to a settlement. If, without necessity, he fails within a reasonable time to proceed to a settlement, though he may have kept the moneys safely, not using them, he should be charged with interest. The statutes conteinplates that he shall be the.actor in the. proceedings for a final settlement. He can. not- excuse himself for delay, because the parties in interest may no.t resort to compulsory proceedings against him. A resort' to these- proceedings-is contemplated • by-the statutes only .when he is in default — when he has not observed
We repeat, the purpose of the statute, defining the .liability of an executor or administrator for interest, is simply-to afford an immediate mode of ascertaining whether, during the period allowed him by law for keeping the moneys, ho has used, or derived porofit from the use of them. -When he has not used, or derived- profit from their use, during that period, there can be no charge of interest against him, unless the duty of making interest was cast upon him. Rut, when that period elapses, and he delays settlement without necessity, he must be charged with interest, whether he had used the money- or not. The charge is made, not because of the use of the money, but because, in neglect of duty, he has kept it from them to whom of right it belonged. — 2 Lomax Ex’rs, 558.
In the present case, the chancellor allowed the administrator the full period prescribed by law for making settlements, and paying over the -moneys received by him, not computing interest for that period. There were no circumstances shown which required, or could justify, the administrator in retaining the moneys for a longer period. The exigencies of the administrations did not require it, and he could have accounted for them as safely at the expiration of that period, as when the present suit was instituted. That he had made no use of the moneys — had not mingled them with his own funds, so that their identity was lost — that they were at all times capable of being distinguished as trust funds — while it relieves him from liability for interest during the period it was within his duty to keep them, does not relieve for a longer period, and during the unnecessary and unreasonable delay in making settlements, and accounting for them. "When a settlement is delayed, beyond the period at which it is intended by the statutes that it' should be made, if there be facts justifying the delay and retaining the money, the burden of proving them must rest on the executor or administrator. He seeks relief from a clear legal liability, and .is excusing the failure to perform a clear legal dirty.
In Benagh v. Turrentine, supra, the widow was the administratrix, and it was held that neglect of duty could not be imputed to her, for failing to cause her dower to be assigned, until after the lapse of the period for the presentment of claims; to which six months must be added, for instituting and prosecuting the proceedings to a decree and assignment. That was the case of an original administration of a solvent estate. What is a reasonable time, within which the personal representative '
The chancellor t decreed, that the administrator' should be charged with rents of the lands of his intestate, Samuel A. Wilson, from and after the 1st day of January, 1869. The grant of administration was de bonis non, and made in 1866; more than twelve months of the period allowed for the presentment of claims having expired during the preceding administration. More than two years after the grant of administration had elapsed before the administrator is charged with rents, and he had in the interim reported the estate as insolvent. The widow was in possession of the lands, and could rightfully retain possession, free of rent, until her dower was assigned. It was the duty of the administrator to cause the assignment to be made, and a neglect of the duty rendered him liable for the rents which could have been derived. The decree of the chancellor is not very explicit. It is uncertain whether it was intended to charge the administrator with the entire rents, or with only two-thirds thereof, during the life of the widow. The latter is all with which he is justly chargeable,-while she was in life; and the charge for rents of such of the lands as were sold under the decree of the Court of Probate should cease from the time of the sale. If this be the proper construction of the decree, we think it is free from error.
Neglect of duty ought not lightly to be -imputed to any trustee, and loss cast upon him, when he derives no gain, and has not sought to derive any. There is always much of difficulty in determining what is a reasonable time, within which he should act. We know of no safe rule, ¡except that which we have already stated; and that, it must be admitted, is not very definite: what would have been the course of a prudent man, transacting his own business, looking to his own interests in view of the particular circumstances. Looking to these, we are not prepared to say the chancellor erred in not charging the administrator with rents from an earlier period. The times were troublous; men’s minds were unsettled; the political status of the State was undefined; governments were being inaugurated in one year, to be destroyed the next; and the prompt action of days of peace and quiet could not be expected, or exacted. The solvency of - Wilson’s estate depended on the validity of the claim preferred by the administrator of C. H. H. Knox, the consideration of which was the purchase-
We can not say the chancellor erred in ruling that the administrator should be chargéd with rents which could have been realized from and after the first day of January, 1869. The charge should be of the value pf two-thirds of the rents during the life of the widow; and it should extend only to the sale of the lands for such as were sold by the administrator. The sale carried to the purchaser the rents accruing, and with these the administrator can not be charged.—English v. Key, 39 Ala. 113.
In reference to the charge for the rents of the lands of James M. Knox, there does not appear to have been any motion made before the register to make such charge; and none having been made, it was error to direct the register, in re-stating the account, to introduce the charge. Nor was there any motion made before the register to charge the administrator of Jane Knox with the rents of lands. The exceptions taken, in reference to a failure or refusal to make the charge, are, consequently, without foundation, and were, for this reason, properly overruled. Nor does it appear that there was any motion to charge him with the Hamlet judgment; and there can be no inquiry now, whether lie should be charged with a larger sum tliau was charged by the register.'
We have considered all matters presented by the assignment
The decree of the chancellor is reversed, and the cause remanded, that there may be a reference to the.register, to re-state the accounts, charging the appellant, Clark, as administrator of Samuel A. Wilson, with interest and rents as herein indicated, and allowing him interest on his disbursements for the same time with which he is charged interest; and charging him with interest as administrator of Jane Knox and James M. Knox, as herein indicated, and allowing him interest on his disbursements during the same period with which he is charged interest. And the appellant will be allowed commissions, as fixed by the statute, on the amounts as shown in the re-stated accounts. The costs of these appeals must be paid as follows: one-fourth by the appellant, Clark, individually; one-fourth by Mobley, as administrator of Amelia E. McWhorter; one-fourth by Clark, as administrator of Samuel E. Wilson, and one-fourth by him as administrator of Jane Knox and James M. Knox,; the said administrators to be reimbursed such costs from the assets in tlieir hands to be administered.
In the opinion of our brother, the Chief-Justice, is this language: “Exceptions [to the register’s report] must be founded on objections allowed or overruled by the register. * * All objections, not made or insisted upon' before the register, must be considered as waived or abandoned.” This was, no doubt, the English rule, and, for a long time, was regarded as the rule in this State. But, under our rules of practice, the majority of the court think our brother states the rule too broadly. Buies 92' and 93 of Chancery Practice (Code of 1876, p. 174) have very materially modified the English rule. Buie 92 declares, that “No notice to the parties to bring in objections to the draft of a report shall be necessary, nor can any exceptions be taken before the register to such draft; nor shall any exceptions to a report be referred to the register; but the same shall be heard and decided in the first instance by the chancellor or court.” Buie 89 prescribes the manner in which testimony shall be taken before the register; that it shall be reduced to writing, paged, &c., and declares it becomes part of the file. This rule (89) provides for an exception before the register. It is when there are “exceptions to his rulings on testimony, admitted or rejected by him.” These he must note, and if the exception is not then taken, it is waived. Buie 93 prescribes how exceptions are to be taken in the Chancery Court, and in what manner testimony, to sustain or defeat the exception, is to be brought before the court. All this is done before the court, and not before the register.
When, however, the register’s report, or the testimony, one or both, show that he has disobeyed the mandate of the decretal order, or chancellor’s instructions, or that he has otherwise committed some positive error of law or of fact, it is not necessary that any motion or exception should be made or taken before him, or that he shall be notified an exception will be taken. A day is allowed, after the report is read in court, for filing exceptions to it; and it is not necessary that any one shall have earlier notice of the intention to except to it. — Buie 94 of Chancery Practice. See Harbin v. Bell, 54 Ala. 389; Moore v. Randolph’s Adm’r, at the present term. We therefore hold that the rule is stated too broadly in the opinion of the Chief-Justice, and the rule herein stated is the true one under our rules of practice.