Colbert v. Daniel, 32 Ala. 314

WALKER, J.

The slaves, which were allotted by the executor of the last will and testament of John Daniel, deceased, to the decedent’s widow, Martha Daniel, were by the widow bequeathed to her younger sons, and passed into their possession upon her death, before the commencement of this suit. The complainant, therefore, cannot have a recovery from the executor of a share in the specific property. If she obtain any relief, it must be a pecuniary recovery for the devastavit committed by the executor. Notwithstanding it may be true that, under the will of John Daniel, the widow was entitled to a share of the personalty only in the contingency of her marriage, which never occurred, the complainant cannot hold the executor responsible for the unauthorized allotment to her of such share. This controlling position upon one point in this case is based upon the applicability to the complainant, in reference to the executor’s wrongful act, of the maxim, “ Volenti non fit injuria.” The meaning of this maxim is, that one who consents to an inj ury, cannot be heard to complain of it. ’ This maxim was adopted and applied by this court in the two decisions made in the case of Crutchfield v. Houston, 14 Ala. 49; 22 Ala. 83. In a case reported in 1 Beavan, 126, (Booth v. Booth,) it was held, that a cestui que trust, who concurs with a trustee in a breach of trust, is liable to indemnify the trustee. The principle above stated was applied in Waring v. Purcell, 1 Hill’s (S. C.) Ch. 202, where a question arose similar to that which is presented in this case. An executrix, by the consent of her co-executor, who was also interested in *323tbe estate, delivered a bond dne to tbe testator to a third person, because it was believed that tbe testator intended to give, and was prevented by sudden death from giving, tbe bond to such person. The executor afterwards, in a chancery suit, attempted to make tbe executrix responsible for tbe bond, because be thought he bad discovered there was a mistake as to tbe testator’s intention to give tbe bond. Chancellor Dessausure decided against tbe complainant; remarking, that “it was not for him to insist that bis co-executor should bring into her account of tbe estate a bond transferred with bis approbation.” Tbe court of appeals affirmed that decision, and said, that tbe act done was the complainant’s own act, for be consented to, and approved it; and as to tbe defendant, the complainant was concluded by tbe maxim, volenti non jit injuria” — See, also, tbe case of Jackson v. Inabnit, 2 Hill’s Ch. 411; Cowan and Wife v. Jones, 27 Ala. 324.

If tbe executor’s wrongful allotment of a share of tbe slaves of John Daniel’s estate was made with the consent of the complainant, her complaint of that‘act will not be regarded by the court. It is clearly shown by tbe proof, that from tbe death of John Daniel, the unanimous opinion of all tbe persons provided for in the will was, that tbe widow took a vested legacy in an equal share of tbe personalty with the several children of tbe deceased. One witness, McCulloch, who married one of tbe legatees, proves that be andDismukes, complainant’s first husband, though doubting upon the subject, entertained a different opinion ; but it does not appear that they ever expressed that opinion, except to each other. This construction of the’ will was adopted by the complainant, in common with the rest of the testator’s children, and frequently expressed by her during a series of years, extending from the death of John Daniel, in 1827, until after her second marriage, in 1838. Concurring with the persons interested as beneficiaries, the executor adopted the same construction of the will. With the executor and the legatees there was an unbroken assent to such a construction of the will, as would give to the widow a share of the personalty. To the adoption of that construction the execu*324tor thus had the consent of all the legatees, including the complainant; and he conducted his administration upon the hypothesis that such was the true construction of the will, without the interposition of an objection, or the occurrence of a complaint, until after 1888, when the complainant’s second husband contended for a different construction. In 1829 or 1830, an allotment was made to the complainant and one of her sisters, of their distributive shares. At that time, the complainant and her husband were present. In ascertaining the two shares, which were separated from the corpus of the estate, the widow was regarded as entitled to a share ; and an equal portion was left, incorporated with the residuum for her. The complainant and her husband were present, and did not object; but, in the language of the testimony, acquiesced, and accepted the allotment made to them.

In 1836, after the death of complainant’s first husband, and while she was a widow, a second allotment of shares in the slaves was made. This allotment was to two of the children, and to the widow. The - allotment to the widow, in 1835, could not be deemed a mere ascertainment of the share to be left undistributed as a provision for the contingency of the widow’s marriage, in which event she would become entitled under the will to a share. A separate and distinct order was made by the “inferior court sitting for ordinary purposes,” appointing commissioners to set apart and lay off to her a distributive share. The commissioners, in pursuance to that order, did set apart to her a share of the slaves; and those are the slaves for which the complainant seeks to charge the executor. This evidence is irresistible to show that the setting apart of the slaves was an allotment of them to her as her property, and must have been so understood by all persons who were present and knew what was done. The proof, however, further shows, that at the time of this allotment, in 1835, the widow had an intention, which was known to the complainant, to bequeath the slaves so allotted to her two youngest sons; and the allotment was made with a view to her making such a bequest. The complainant, being an adult feme sole, and *325knowing that the slaves were to be allotted to the widow, separated from the corpus of tlie estate, and that the widow designed to bequeath them to her two sons, was present when the commissioners set apart the slaves, and made no objection, as all the witnesses who testify upon the subject prove. Some of the witnesses say, that she acquiesced. One witness says, that no objection was made by the complainant, or any other person; but there was rather an agreement to the same by all concerned, as well as he recollects. Another witness testifies, that the construction of the will, which allowed to the widow a share in the personalty, was adopted when the allotment was made, in 1835, the complainant assenting to such a construction of the will, and consenting in the allotment to Martha Daniel of her portion of the said slaves.

It also appears that the complainant lived, for a long time after 1835, near the widow, Martha Daniel; knew of her intention to bequeath the slaves to her two sons, (John W. and Levi Daniel,) and that she claimed them as her property; and yet the complainant uttered no complaint, and made no objection. This last named testimony corroborates the idea, that the allotment to the widow was an act to which the complainant had no objection, and, having no objection, assented to it. None of the evidence is in conflict with that which proves positively the complainant’s consent to the allotment to the widow; but all of it contributes to corroborate that evidence. The witness, who proves the complainant’s consent, stands in an attitude which might lead us to i’egard his testimony with suspicion; yet we cannot doubt its credibility as to this point, when we find it fortified by the tendency of all the other evidence in the case.

“We deduce the conclusion from the foregoing survey of the evidence, first, that the complainant assented to and approved, and herself asserted, the construction of the will upon which the executor acted in making the allotment to the widow; and, secondly, that she was present and actually consented to the allotment which she now says constituted a devastavit by the executor. If the executor injured her by the construction which he. placed upon *326the will, or by the allotment which he made in pursuance to that construction, she cannot complain. The injury was done by her consent, and with her approval; and the maxim applies, volenti non jit injuria.

The wife of John Daniel had, at the time of her intermarriage with him, a life estate in a number of slaves, the remainder interest in which slaves belonged to her three children by a previous marriage. These slaves, with the exception of one which was disposed of, remained in the possession of John Daniel, until his death. John Daniel, after his marriage, purchased two of the shares of the remainder interest, and took conveyances thereof to his children. John Daniel left six children. The complainant claims that she was entitled, upon the death of Martha Daniel, to one-sixth of the two shares, or one-sixth of two-thirds of the remainder; and she seeks a recovery of such share of the slaves. Conceding that the complainant’s right to the interest described in those slaves could be asserted in this bill, (which is by no means certain,) we must nevertheless deny to her the relief sought, because the claim has been satisfied. The answers allege, and the proof establishes, that a division of those slaves among the persons interested, upon the basis of right asserted in the bill, was had before the commencement of this suit. The complainant and her husband were notified in advance of that division; but neither of them attended. Upon that division, a full share of the slaves in value, according to complainant’s interest, was allotted to her; and her share was left with her brother, for her and her husband. After the commencement of this suit, the share so allotted was accepted, and the husband of the complainant receipted for them as a full satisfaction of the share, and released all claim in reference to those slaves. The division of those slaves, having been thus ratified, approved and accepted, must be regarded as having been valid from the commencement, and the complainant can have no farther claim to a distributive share of them.

[2.] The complainant asserts a right to charge the executor with one-sixth of two-thirds of the hire of these *327last named slaves, from the death of Martha Daniel until the division. The executor cannot be chargeable with that which he did not have, and to which he had no right in his capacity of executor. The executor’s testator took the title to the two shares of the remainder interest in the name of his children, and not in his own. Consequently, the executor had no right to the hire of the slaves after the termination of the life estate by the death of Martha Daniel, and could not have recovered the same if he had attempted to do so, and he cannot be chargeable with such hire.

[3.] The complainant also demands by her bill a recovery from the executor of her proper share of the hire of the slaves, in which Martha Daniel had a life estate, for the period antecedent to the death of the said Martha. Before the allotment to the complainant, these slaves were worked upon the testator’s plantation; and the presumption is, that the complainant, in the division, obtained her proper share of the services of those slaves prior to that time. But we cannot perceive any sufficient reason for the refusal to charge the executor with a share of the hire of those slaves, in favor of the complainant, intervening between the allotment to her, in 1829 or 1830, and the death of Martha Daniel. The life estate in the slaves according to the common law, which we must presume prevailed in Georgia, vested upon his marriage in John Daniel. There are no words in the will creating a life estate, which can have the effect of making it a separate estate in Mrs. Daniel. The life estate being vested in John Daniel, it wras assets in the hands of his executor. Under the will of the testator, the complainant was clearly entitled to share equally with the other five children of John Daniel in the slaves during the life-time of Martha Daniel. This has been denied to her, and the representative of the executor is chargeable with one-sixth of the hire of such slaves, from the time of the allotment to the complainant and her husband, in 1829 or 1830, to the death of Martha Daniel.

[4.] It is contended that the executor’s breach of duty, in the omission to assign to the complainant her proper *328share of the life-estate slaves, was the result of a misconstruction of the will of Levi Daniel. That will was in its terms so plain, that such a mistake in the construction of it is strange. This misconstruction of the will, upon which it is contended the executor acted, was adopted by the children of the testator. The complainant, like the rest, misconstruing the will, evidently thought her mother had a separate estate for life in these slaves, and that she herself had uo interest in them until the death of the life tenant. Influenced by this mistake as to her rights, she remained silent, and did not assert them. She even asserted her mother’s right to them during her life. She remained silent, too, when the allotment was made to her, and did not require that the executor should take those slaves into the account in ascertaining her share. But silence, or an omission to assert her right, resulting from an igiiorance of that right, would not estop her. — Steele v. Adams, 21 Ala. 534. The maxim u volenti non jit inju-ria,” brought to bear upon another branch of this case, does not apply here, because the proof does not show a consent on the part of the complainant to her exclusion by the executor from all participation in the life interest in the slaves; nor that the executor was induced by the complainant’s act or consent to withhold the assertion of his claim as executor to the slaves. On the contrary, the evidence shows to our satisfaction, that the executor did hold the slaves in his capacity of executor.

The complainant’s allegations that the slave Harry was not distributed, and that she had not received her share of the proceeds of the sale of the Jones county land, are not sustained by the proof. It is proved, that the slave Harry was distributed according to the will; and one witness swears, that, according to his recollection, the complainant told him that she had received her share of the Jones county lands.

[5.] The last item of the will required, that what money might or should be advanced to cthe education and improvement of the testator’s elder children, then at school, should be considered as a part of their “ moiety ” of the estate, and that they should account for the same to the *329managers of his estate. We do not understand this ciause of the will to mean, that the elder children should be charged with the expenses incurred by the testator in their education and improvement, but with the money which might be advanced by the executor for that purpose. The will was executed about six years before the testator’s death, doubtless with the expectation of a much earlier death than occurred. The testator, most probably, anticipated that the burden of meeting the immediate and actually accruing expenses of the elder children, then at school, would devolve upon the executor, before he would realize any thing from the crops, the means provided for the education of the children. The education of the complainant ceased, and she was married, before the testator’s death; and the executor made no advancement for her education or improvement. If he paid debts contracted by the testator in and about the complainant’s education, they stand upon the same footing with other debts. The will does not authorize us to charge them as advancements against the complainant.

[6.] The complainant’s share is certainly chargeable with her proportion of the debts of the estate. The will provides no fund whatever for the payment of debts, and each legatee should share equally the burden of discharging the debts. If the complainant has received her proper share of all that has been distributed, without contribution to the payment of the debts, her proper share of the debts should be deducted from the sum to which she is entitled on account of the hire of negroes as hereinbefore set forth.

[7.] Neither the Georgia statute of limitations, nor the statute of limitations of this State, can avail the defendant as a bar to a decree for the hire, with which we have decided he is chargeable. Nor can the doctrine of laches he invoked for him. The right of the complainant grows out of a trust. We have examined the testimony with care; and the result of that examination is the conclusion, that the trust was subsisting, recognized, and acknowledged, until about one year before the commencement of this suit. The position that the executor, when hi made *330the first allotment in 1829 or 1830, threw off and openly repudiated the position of trustee in relation to the slaves the hire of which is here claimed, is not well taken in point of fact. These slaves were treated as a part of the estate. No distinction was made between the possession and employment of them, and of those which indisputably belonged to the estate. These slaves were appraised as a part of the estate; they labored in common with the slaves of the estate, upon the lands which belonged to it. The proceeds of their labor was blended with, and treated as a part of, the estate. They, together with the other slaves, were under the general superintendence and control of the executor in his official capacity. They were controlled by the overseers employed by the executor, and the executor charged himself, in a sworn return made to> the court, with the hire of some of the slaves as late as 1838, which hire enters into abalance struck in the sworn return in favor of the estate. These circumstances lead us to the conclusion, that the trust was subsisting-and acknowledged by the conduct of the executor until within .a short time before the commencement of this suit. While the slaves were thus held under an acknowledged trust, neither the statute of limitations nor the doctrine of laches could operate in favor of the executor. — Pinkston v. Brewster, Solomon & Co., 14 Ala. 315; Maury v. Mason, 8 Porter, 222. We are aware that there is some proof opposed to the conclusion which we have attained; but we think it cannot weigh against the testimony upon which we decide the point.

[8.] We cannot assent to the proposition, that a legatee cannot sue in this State an executor, for an account and ’ settlement of his administration and recovery of the legacy, when the executor has removed to and become domiciled in this State without having made a settlement in the State in which the administration was pending. We admit, that there is authority which sustains that proposition. — See Story’s Conflict of Laws, § 513, 514. ‘ The question did not arise in the case of Worthy v. Lyon, 18 Ala. 784, for the executors in that case did not reside in the State of Alabama. One of them resided in Geor*331gia, where letters of administration were granted. We are not sure that the court in that case intended to go beyond the question arising, and intimate bjT a dictum that the chancery court would have no jurisdiction; but, if it had done so, we should not hesitate to depart from such •a doctrine. We think that, to hold that the court has no jurisdiction in this ease, might produce a total failure of justice. The representative, being resident in this State, cannot be reached by any judicial proceeding in the State from which he came. If he have sureties in the State of the administration, it must be conceded that proceedings might be had against them. But then there maybe cases where there are no sureties; the sureties may be insolvent, or may have removed to another State; and a discovery from the representative of the estate may be indispensable. Besides, no adequate reason can be perceived, if there are solvent sureties who could be reached in the State of the administration, why the persons having an equitable right to an account against an executor or administrator, should he compelled to forego it, because the executor or administrator had changed his domicile to another side of the State line. This view of the question is fully sustained by the following authorities: McNamara v. Dywer, 7 Paige’s Ch. R. 239; Tunstall v. Pollard, 11 Leigh, 1.

This question is left undecided in Calhoun v. King, 5 Ala. 523. The precise point was not decided in Julian v. Reynolds, 8 Ala. 680, but we think the effect of that case is to sustain the principle asserted by us. — See, also, Williamson v. Branch Bank, 7 Ala. 906.

[9.] Two of the defendants demurred to the complainant’s bill, for the omission to make the representatives of B. P. and of J. W. Daniel parties, or assign a sufficient reason for that omission. B. P. and J. W. Daniel were legatees; and their representatives are- entitled to‘shares of the hire sought to be recovered by the complainant. They died after attaining majority, and no excuse for the failure to make their representatives parties is set up, •except that uone have been appointed. It is settled by the decisions of this court, that the representatives of the *332deceased legatees were necessary parties, unless some excuse for their omission, which the law deems sufficient, is alleged. — Bogan & Bogan v. Camp, 30 Ala. —; Frowner v. Johnson, 20 Ala. R. 477; Chapman v. Hamilton, 19 ib. 121; Hartley v. Bloodgood, 16 ib. 233; Goodman v. Benham, 16 ib. 625; Julian v. Reynolds, 8 ib. 680. The fact that there is no administration is not a sufficient excuse for the failure to make the representatives of the deceased distributees parties. It does not appear that there were no debts against their estate; and vre cannot presume the absence of debts, as they were over the age of twenty-one years ; and it does not appear that, if there were debts, they have been paid‘off. It is clear that this case comes within no exception to the general rule, that the legatees or their representatives in such a case as this must be made parties. — Vanderveer v. Alston, 16 Ala. 499; Miller v. Eatman, 11 Ala. 614; Bethea v. McCall, 5 Ala. 315.

[10.] The court, for the mere nonjoinder of parties defendant, should not have dismissed unqualifiedly without affording an opportunity to amend. — Gibbs & Labuzan v. Frost & Dickinson, 4 Ala. 720; Lucas v. Bank of Darien, 2 St. 326; Rugely v. Robinson, 10 Ala. 703; Alderson v. Harris, 12 Ala. 580; Toulmin v. Hamilton, 7 Ala. 369; Grimshaw & Brown v. Walker, 12 Ala. 107; Bloodgood v. Hartley, 16 Ala. 233.

The decree of the court below is reversed, and the cause remanded for further proceedings.

Case Details

Case Name: Colbert v. Daniel

Court Name: Supreme Court of Alabama

Date Published: Jan 15, 1858

Citation: 32 Ala. 314

Court Abbreviation: Ala.