3 Ala. 223 | Ala. | 1841
In Whiting, et al. v. Bank of U. S. 13 Pet. Rep. 6, a decree was rendered, foreclosing the equity of redemption of the mortgagor to the mortgaged premises, directing a sale, and a report thereof to be made to the Court by the master. It was held that that was a final decree, and might be appealed from ; the sale and report being considered only the execution of the decree. And in Weatherford, et al. v. James, 2 Ala. Rep. N. S. 170, it was adjudged that a decree which settled the rights of the parties by declaring that the complainant was entitled to such an estate as one of the defendants could convey; directing partition to be made between the defendants — requiring the master to compute the amount of damages, if any, which had been paid by the complainant on a judgment at law, and ascertain other facts, was final.
The cases cited to this point, by the plaintiff’s counsel, with the exception of Cherry and Bell v. Belcher, 5 Stewt. & P. Rep. 133, do not seem to be at all pertinent- With the exception stated, they were cases of suits on administration bonds, alleging breaches that occurred previous to 1830, but do not determine what is, or is not a final decree.
Cherry & Bell v. Belcher, was a suit in equity, by which the complainant, in right of his wife, as distributee, sought to recover one fourth of a sum of money, which the Orphans’ Court ascertained to be due on settlement, by the administrators to the estate of their intestate. It was insisted that chancery had no jurisdiction of the case, or if it had, the settlement was not conclusive of the amount of the administrators indebtedness.— The Court said, “whatever might be the effect of a distinct and final order of distribution made by the County Court, awarding to each distributee, the amount of his distributive part, a mere ascertainment of the sum remaining in the hands of the representatives, even if the settlement were .certainly a final one, cannot divest chancery of its jurisdiction, when applied to, by one of the distributees, to compel payment of the portion to which he is entitled.” Again: “But the settlement relied upon in this case, seems to contemplate something further to be done. It does not purport to be final, but declares,
But it is objected, that the decree is not final, because it directs the sums adjudged to the several legatees, to be paid according to the terms and conditions of the will of the testator; and.to be subject to such payments as may have been previously made, upon account of the respective legacies. The wife of the defendant in error, is made a beneficiary of the testator, by two clauses of his will. By the first, he bequeaths one thousand dollars to herself, her brother and sister, “ to be equally divided between them, as they become of age, or marry:” by the last, he bequeaths to them one eighth part of the proceeds of his estate, not specially bequeathed, “to be equally divided between them.” There is nothing to show that the defendant’s wife was not. entitled to receive both legacies at the time the decree was rendered. She may have been twenty-one years of age, if so, she was entitled to the first; and to the last, no condition is annexed. So that the reference to the will can have no influence in determining the character of the decree.
In declaring that the legacies shall “ be subject to such payments as shall have been heretofore made,” the Court have not evinced an intention that the decree shall, be interlocutory. In
Suppose a Court should render a judgment for a specific sum, in usual form, and at the conclusion add, that it was subject to such payments as were made pending the suit, or previously; such a judgment would doubtless be definitive, so far as it respected the action oí the Court of law. Yet it would be competent for a Court of Equity to allow to the defendant all sums which he could show had been paid. So, in the case before us, the decree is a final disposition of the matter in the Orphans’ Court, but chancery would entertain a bill, alleging, that payments had been made upon the legacies, previous to its rendition.
Lewis v. Smith, 2 Serg’t. & R. Rep. 142, was an action on the case for money had and received, &c. against the defendant, as Marshal for the district of Pennsylvania, to recover the proceeds of the sale of certain goods taken in execution, and sold by the defendant, by virtue of, or under color of a fi.fa. issued from the Circuit Court of the United States at the suit of Escaralte against Fitzsimmons. Judgment was confessed by Fitzsimmons, with a stay of execution for sixty days. The judgment was entered on the docket, generally, without stating for what sum. Among other grounds of defence, it was insisted, that the judgment was merely interlocutory, and did not authorise the issuance of an execution. The Court held, that the judgment was final, “because sixty days stay of exe
In the present case, the record is quite as strong to show, that the decree is final; for the order of publication asserts such a settlement to be intended; and the Court in rendering the decree, declares that it is final.
Having ascertained that the decree is final, we now proceed to inquire whether Louisa Spencer, previous to her marriage, was entitled to an execution thereon. By the act of 1830, “ to extend the powers of the County and Orphans’ Court in certain cases, and for other purposes,” it is enacted,
1. “ All decrees made by the Orphans’ Court on final settlements, on the accounts of executors, administrators, and guardians, shall have the force and effect of judgments at law, and executions may issue thereon, for the collection of the several distributive amounts against such executor, administrator, or guardian.
2- “ When distribution of real or personal estate is decreed by the said Court, each distributee, heir, or devisee, may and shall have his or her writ of execution, or attachment, one or both, in the case of personal estate; and in the case of real estate, a writ of habere facias possessionem, against the executor, administrator, or guardian, and the sheriff to whom such writ shall be directed, shall execute the same according to the commands thereof.”
This statute is exceedingly explicit. It declares the effect of decrees made on final settlements to be equivalent to judgments at law,* and that each distributee, heir, or devisee, may have his, or her execution for the collection of the several distributive amounts. It seems too clear to require illustration, that Louisa Spencer was entitled to an execution on the decree, in her favor, since it is in all respects, such as the act contemplates.
But it is insisted, that as an action of account, or other appropriate action at law, is given to legatees for the recovery of their legacies, that remedy should have been adopted. Aik. Dig. 183. True, such a remedy is provided, yet it does not exclude any other which may be afforded by statute. The act of 1812, “concerning the distribution of intestates estates,”as amended by the act of January, 1833, authorises a distributee or legatee, at any time after the expiration of eighteen months from the grant of letters of administration, &c. to petition the Orphans’ Court for an assignment of his distributive share or legacy, and the County Court is authorised to take measures to cause the same to be done. Aik. Dig. 155; Leavens v. Butler and Wife, 8 Porter’s Rep. 392. This statute taken in connection with that of 1830, already cited, clearly shows, that the Orphans’ Court, on a final settlement of the accounts of an executor or administrator, may dispose, by its decree, of all the assets in hand, and award to each distributee or legatee, his proper portion.
There are doubtless questions, which sometimes arise in the execution of the will, that the Orphans’ Court is incompetent to determine, and where these relate to trusts technically so called, a Court of Equity must be resorted to, for relief. But what we have said in regard to the form of the bequests, and the powers of the Orphans’ Court, will sufficiently show, that the present case is one in which it can administer complete redress.
In Blackwell’s ex’rs v. Meneese, 5 Stewart and Porter’s Rep. 400, the Court said, there was no law prior to 1832, which au-thorised the Orphans’ Court, upon the final settlement of an estate, to insert in its decree, the amount of each distributive shax-e or legacy ; prior to that year, by the act of 1830, all decrees, upon final settlements, were to have the force and effect of judgments, and executions allowed to issue thereon for the col
Though a scire facias was not the appropriate remedy previous to the passage of the statute cited, to revive a judgment in a personal action, where no execution had issued for a year and a day, yet it does not follow, that it would lie in no case upon a judgment in such an action. The reason of the rule leads to a different conclusion. It is a writ that issues in many cases, and is not at all confined to any particular branch of the law, but is in use in many parts of judicial proceedings. 6 Dane’s Ab. 462. It is deemed a judicial writ, and founded on some matter of record, as judgments, &c. to enforce the execution of them, or to vacate or set them aside. But in many cases, a scire facias is granted, partly upon the record, and partly upon a suggestion, without which no proceeding could be had on the record; 6 Bacon’s Ab. 102. Thus, if a feme sole obtain judgment, and marry, her husband and self may sue out a scire facias, calling upon the defendant, to show cause, why they should not have execution. 6 Dane’s Ab. 467-8 ; 6 Bacon’s Ab. 116.
If essential to the regularity of the proceedings, that the second scire facias should be an alias iorit,we think the words, “ alias sci fa,” written at the head of the process, taken in connection with the order of Court, that preceded it, sufficiently show that such was its character. Besides, the objection goes to a defect of form, which was amendable on motion, and does not warrant a reversal of the decree. Aik. Dig. 265-6.