Ex parte Harrison

| Ala. | Jan 15, 1845

COLLIER, G. J.

It is provided by statute, that from any judgment, or order final of the Orphans’ Court, whether in vacation or term time, an appeal or writ of error, shall lie to the Circuit or Supreme Court, in the same manner as upon judgments of the Circuit Courts. [Clay’s Dig. 297, § 4.] The important inquiry in the present case is, whether the order of the Orphans’ Court is final, within the meaning of the act cited.

The case of Merrill v. Jones, 8 Porter’s Rep. 554, is supposed by the petitioners’ counsel, to be similar to the one before us. There, it was alledged, that the administrator had not made a true inventory of the intestate’s estate, but had omitted to return several negroes, &e., and that the negroes had been carried away from the premises of the deceased by him. The administrator affirmed that the negroes were not the property of the estate, and a jury were impanneled to try the issue, who found that they were subject to distribution. Thereupon the Court ordered the administrator,to distribute the slaves among the distributees. This Court held, that the decree of the Orphans’ Court merely directed the administrator to proceed to make distribution according to the statute, of the slaves ascertained to belong to the estate. “ Whatever may be the merits or demerits of these proceedings, the decree is not a final settlement of the estate; no distribution was actually made, nor was there a decree ascertaining how much is due to each dis-tributee, or to the defendant in error as the sole distributee,”

The decree in that case merely directs the administrator to distribute the slaves, that is, to proceed in the performance of this duty as the statute directs. Some further proceeding was necessary, to ascertain, and recognize the distributees, to adjust their respective proportions, to appoint the commissioners to distribute, &c. But in the case at bar, all this was determined and settled by the order, and the shares of the petitioners were merely to be particularized by the commissioners, and the slaves set apart to each, delivered. This, by analogy to a decree in Chancery, is pro re nata, definitive of the rights of the parties. In Weatherford, et al. v. James, 2 Ala. Rep. 170, we say, that a decree is final which settles the rights of the parties in litigation, although it contain a reference to the master, to take an account and report what is due to the complainant. This conclusion has been repeatedly reaffirmed by us, and seems to be well supported by authority.

To make the order final, it is not necessary that all the dis-tributees should have united in the application to the Orphans’ Court; each distributee may proceed separately, and obtain a final decree in his favor. This is authorized by statute in a proper case.

Having determined that the order is final, the right of the administrator to sue out a writ of error follows as a consequence. The question then, as to the right of the distributees to an allotment of their shares, eighteen months having elapsed since the grant of administration, need not now be considered. But we would remark, that in Leavens v. Butler, et ux. 8 Porter’s Rep. 380, we held, that a legatee cannot, in all cases, immediately after the expiration of that time, coerce the payment of his legacy. Whether the law is the same in respect to a distributive share, we will not inquire.

It results from what has been said, that the prayer of the petitioners must be denied.