Davis v. Davis

6 Ala. 611 | Ala. | 1844

COLLIER, C. J.

1. In Doe ex dem. Duval’s heirs v. McLoskey, [1 Ala. Rep 733,] it. was held that it would be intended on error, that a deeree of the orphans’ court was made on a day when the court could have been regularly holden — the reverse not.appearing, it must be presumed it was made in conformity to the statute. The decree in the case before us, was made on a day in vacation, and- the subject is such’as the judge of the county court is authorised to adjudicate out of term time — in fact, by the fifth section, of the act of 1821, [Clay’s Dig. 303,] he is required by order made in open court, to appoint certain days, “not less than one day in every period of each month” for the return of process, and shall then hear and determine such cases as he is competent to hear and determine in vacation. The case cited is an authority to show that the record of a cause when brought here, need not show affirmatively, that the day when the decree was rendered, was thus appointed.

2. The case of Merrill v. Jones, [2 Ala. Rep. 192,] determines, that in all proceedings for the final settlement of a solvent estate before an orphans’ court, the parties to the decree must necessarily be the executor or administrator on one side, and the distri-butees on the other. And in Portis v. Creagh, ex’r, [4 Porter’s Rep. 341,]. it was decided that it should be shewn at whose instance the settlement of the testator’s estate was required to be made — who was the executor, and who claimed to be interested ]n the will, and in what shares or proportions.

It is inferrable from the decree in the case before us, that the executor and the legatees were parties to the proceedings in the orphans’ court, that they voluntarily appeared, the latter moving the court that the estate of the testator might be finally settled, and the executor filing his account and vouchers, that the court might make such settlement. Tli'e parties who moved against the executor, do not formally propound their interest, or other-, wise state the character in which they ask the action of the court, but the decree shows that they are legatees, and this must be regarded as substantially sufficient. In the' absence of- any thing in the record from which it can be inferred that there are persons entitled to claim under the will, whose names are not-men-^ tioned in the decree, it must be intended that all the legatees were before the court; especially as'the contrary presumption, instead of sustaining, would lead to a reversal of the proceeding.

3. It is true, the act of 1806, [Clay’s Dig. 226, §_ 27,] directs that the judge of the county court shall- take, receive and- audit all accounts of executors, &c. and after examining and auditing them, and causing them to be properly stated, shall report the same for allowance to the next term of the orphans’ court: . And further, that 40 day’s notice shall be given, &c. of the time when the account will be reported, &c. [See Taylor and wife, et als. v. Reese, adm’r, 4 Ala. Rep. 121.] In Williamson, et al. v. Hill, [6 Porter’s Rep. 184,] this court says, that it is not for an executor or administrator' to object, that the notice contemplated by the act cited, was not given; that it was not intended for the advantage of the personal representative, but for the benefit of creditors, distributees, &c. Even if the settlement was not made by consent, this case is a decisive authority to shew that the third objection is not well taken.

4. The act of‘1830, enacts that all decrees made by the orphans’ court on the final settlement of the accounts of executors, &c. shall have the force and effect of judgments at law, and executions may issue thereon for the collection of the several amounts against the executor, &c. [Clay’s Dig. 304, § 42.] And the act of 1832, -provides that on such settlement the orphans’ court shall insert in its decree the amount of each distributive share. ..[Id. 305, § 44.] ' It is clear, that the' decree in the present case, is objectionable in being rendered for an entire sum in favor of all of the legatees. This conclusion is deducible from the statutes ci--ted, and perhaps would have followed independently of them, from the fact that the interest of the legatees is several. It may be supposed.that the executor should not be permitted to urge this objection as he is only made liable in solido to the aggregate of the sums due each of the legatees. But the decree cannot be sustained by such an argument. If the -record of a cause shews that a judgment has been recovered by one in whom the right of action was not vested, the judgment would be reversible on error. Here each -of the legatees is entitled to one third of the sum which has been adjudged to the three, and each may be said to have obtained a decree in his favor for a sum two thirds greater than he is entitled to. Neither each, or all of them jointly, have a right to the sum expressed in the decree, and its payment cannot be enforced by the process of the orphans’ court.

5. In respect to the fifth point, we think it is entirely regular to render a decree against an executor on final settlement, so as to authorise an execution de bonis propriis. He either admits himself, or-the court ascertains by evidence, that he has assets in his hands belonging to the testator’s estate. Under such circumstances, he is personally liable, either because he has appropriated or otherwise disposed of money or property to which the Creditors or other persons interested in the estate, are entitled; and hence a decree which authorises the seizure and sale of the executor’s property is obviously proper.

6. It is further objected, that the decree is erroneous, because it does not require the legatees to execute a bond, conditioned to refund in the event of any demands afterwards appearing against the testator’s estate. [Clay’s Dig. 196.] The statute which requires such a bond to be executed, applies only where a legatee or distributee petitions the orphans’ court for his legacy, or distributive share, after the expiration of eighteen months,, from the qualification of the executor, or administrator. Where the estate is finally settled, no such requisition is made of the legatee.

We cannot forego the remark that the record in the present case is exceedingly meagre. It does not discover the ground upon which the three legatees who have a decrpe’ in their favor are entitled to recover — neither the will, inventory or other paper are found in the transcript to give information on - this point. The decree itself wants precision in omitting to affirm the facts necessary to sustain it, and especially in not shewing how the executor became liable to pay the sum adjudged against him. But these defects are not brought to our view by the assignment of errors.

For the fourth objection made by the plaintiff in error, the de-> cree of the orphans’ court is reversed, and the cause remanded.