Cummings v. Bradley

57 Ala. 224 | Ala. | 1876

STONE, J.

1. The Probate Court of Wilcox county adopted rules of practice, and, among others, the following, in reference to settlements of executors, administrators, and guardians : “ Eor the purpose of facilitating the orderly dispatch of matters pertaining to settlements, when an account -may be disputed, the party contesting must file his exceptions in writing, specifying to which items of the account he excepts, with the ground of exception, or, as to which additional proof may be required.” The administrator de bonis non had filed exceptions to several items of the account, and the trial was entered upon. Pending the trial, he offered' oral objections to items to which he had not excepted to, and offered proof in support of such objections. He made a similar offer of objections and proof, against items he had excepted to, but on grounds other than those specified in his exceptions. The court confined him to his written exceptions, and ruled out the evidence; to which ruling an exception was reserved. The question arises, had the Probate Court authority to make such rule, and to compel parties litigating before it to conform to it?

In Golden v. Prince, 3 Wash. C. C. 313, it was declared, that “ every court possesses the power of making its own. rules of practice, unless forbidden by law.” And in Odenheimer v. Stokes, 5 Watts & Serg. 175, commenting on a rule of practice established by an inferior court, the Supreme Court of Pennsylvania said: “ The object of such rule is to . prevent unnecessary expense, and useless delays or objections, often frivolous. It does not interfere with the rules of evidence. It does not take away the right to demand proof of execution, but only requires the party to give notice by affidavit that he means to contest the fact. Not doing so, is a waiver of objection.” Speaking of the case of Mills v. U.S. Bank, 11 Wheat. 431, the court said: “'It was decided in that case to fall within the power to regulate the practice for the advancement of justice, and especially, to that end,. to prevent delays in the proceedings.” See, also, Ex parte Paultney v. City of Lafayette, 12 Peters, 472.

We think the argument stated above is eminently sound and conservative, and we adopt both the argument and the conclusion. Such rules, properly framed, narrow the field of contestation, and prevent needless expense, surprise and delay. Of course, such rules must be so adjusted as not to deny to parties legal rights; and, in cases like the present, if it be necessary to attain the ends of justice, we will not say that, on proper showing, parties should not be allowed to file additional exceptions. In granting such leave, however, as in all other cases of amendment, the court should see to it that no undue advantage is taken of the opposing party. This can be prevented by a continuance, if necessary. In the present case, no motion was made for leave to file additional exceptions; and the Probate Court did not err in excluding the evidence offered. This disposes of all the questions which sought to controvert items not excepted tq, and which assailed items that were excepted to, on grounds which had not been specified.

2. The attempt to charge the administration in chief, as for a devastavit, with the fifty-four bales of cotton sold by them January 23, 1863, can not be sustained. The estate was then without money, and the accounts and settlements show that every dollar of that money was paid, at its par value, on debts of the intestate contracted before the war. We think that, considering the insecurity of property, and the instability of values in this State, at that time, caused by the gigantic war in which we were engaged, this was very prudent administration.

3. On the 10th April, 1865, the administrator and administratrix in chief collected, in Confederate money, of T. A. Powe, $6,482.89. This was a last payment, made by him, on his note due January 1, 1865. The date of this ■note is not given. Before this collection, they had disbursed all the money assets of the estate, Confederate or otherwise, that had come to their hands, and a small fraction over. Consequently, when they come to make their annual settlement in 1867, it "was shown that, after making such collection of $6,482.89, they had in hands, assets of the estate, in Confederate money, $6,275.27; some $207 less than their latest collection; that from T. A. Powe. This latest disbursement, up to that time, and up to the destruction of Confederate securities by the close of the war, was made on the first of March, 1865. The administrators in chief are not shown to have been allowed, or even to have claimed to be reimbursed out of the estate, for the excess of payments made by them for the estate in Confederate money, over the assets, less this last collection, received by them in the same currency. The administrators in chief, in their annual settlement of 1867, were allowed a credit in the following language: “ By amount Confederate funds on hands, $6,275.27.” The administrator de bonis non, as to this item, filed the following exception: “ The court is now moved to charge the administrator and administratrix with the value of the Confederate money on hand on the last settlement, January 14, 1867, being $6,275.27.” It will be observed that this exception does not complain of the administrators in chief for making this • collection in Confederate money; made, as we judicially know it was, about the time of the surrender of the Confederate armies. The effort is to charge them with its value. In the absence of an exception, bringing up the question, we must suppose the terms of the contract authorized the collection in that currency.

There is nothing in this record to justify us in sustaining this exception, W e judicially know that Confederate money, at that time, was almost or quite valueless. We can not believe, in the absence of proof, that it would have been received in the payment of ante-war debts, or in the purchase of property. Moreover, it is in proof that one of the largest creditors of the estate had, long before, refused to receive it in payment; and the proof shows the money was not used, but perished in the hands of the administrators in chief. There is nothing in this exception.

4. The proof does not convince us that the Probate Court made an excessive allowance to the administrators, for superintending the plantation for two years, or for commissions. The commissions for distribution áre placed very low, and no interest allowed on this item.

5. The question of taxes, and redemption of the lands from tax-sale: The administrators had no moneys, or available assets of the estate, and they were not bound to use. their own funds, so far as we can discover from this record. We desire not to be misunderstood. It was the duty of the administrators, if the lands were in their possession, and capable of yielding rents, to pay the taxes out of such rents, and not to permit them to be sold for taxes. There is not enough in the record to show mal-administration in this regard.

6. The remaining exceptions are all of a class, namely, that the payment and allowances should have been met and discharged, as they accrued, in Confederate money, and should not be allowed against the estate on a basis of money now current. As to one important item, attoimey’s fees, it does not appear that more than one-third of the services were rendered until after the close of the war.. The proof is, that these charges are reasonable, and no question is raised on that account. The commissions allowed to the .administrators seem reasonable. If they had taken these commissions out of the Confederate money in their hands, it would have left that much less to be applied to the debts of the estate, and, consequently, the unpaid debts would have remained that much the larger. The estate was then very amply solvent, and it was not probably thought it would ever become insolvent. We do not think there is .■.any ground for sustaining this objection.

7. The final decree in favor of the administrators in chief, is, in form, strictly according to the statute. — Revised Code, § 2167.

8. In the voucher $849.65, balance found due to administrators on annual settlement of 1867, is included an item : “1862, Aug. 25. By cash paid Spurlin & Barnaby on account of note, $60.00.” This payment helps to make up the voucher number 1, $849.65, which was claimed and allowed as a payment or disbursement in the final settlement. Another small item, “paid Jenkins & Eullenwider $1.25,” is in the same category. This entire item, $849.65, went into the final settlement, and was allowed as a preferred claim. There is nothing in the record to show the consideration of' the debt to Spurlin & Barnaby, or the debt to Jenkins & Eullenwider. If they were ordinary debts of the estate,, their payment by the administrators did not constitute them preferred claims. On the'other hand, if they were part of " the expenses of administration, or, were for funeral expenses, or expenses of the last illness, they were preferred claims. Inasmuch as such payments might have been on preferred claims, and the record does not inform us to the contrary, the rule of this court does not allow us to presume error, and, on such presumption, to reverse the ruling of the Probate Court. Error must be affirmatively shown.—1 Brick. Dig. 781, § 120. We feel bound to presume, in support of the ruling of the Probate Court, that these payments were made on preferred claims.

All the other items going to make up voucher 1, $849.65, are for expenses of administration, and are properly preferred claims.

There is no error in the record, and the decree of the Probate Court is affirmed.