17 Ala. 170 | Ala. | 1850
It is the duty of an administrator or other trustee to defend the trust estate from all unjust demands made against it, and he should employ the proper and reasonable means to make the defence effectual. As this is the duty of a trustee, it follows that the necessary and reasonable expenses incident to the litigation must be borne by the trust estate, and not by the trustee in his in dividual capacity. — Coopwood et al. v. Wallace, 12 Ala. 790; 15 Ala. 335. This position will not be denied, and the only question that can be made in regard to the expenses paid by Mrs. Gerald in prosecuting Barber, is, that they were unnecessary or unreasonable. We are, however, fully satisfied from the facts exhibited by the record, that the prosecution and conviction of Barber for falsely pensonating Jesse Bunkley and demanding the property that had been paid over to William Bunkley by Parish, the guardian of Jesse, on the supposition of his death, was the only mode of defence that could have been adopted to save the estate of William Bunkley. After Barber had succeeded in the village where Jesse Bunkley was raised in creating the belief that he was Jesse Bunkley, even in the minds of those who had known Bunkley from his youth, had he been permitted to leave the State and to prosecute his demand by an attorney, wo do not see how he could have failed of success. To procure the proof that he' was Elijah Barber, and not Jesse Bunkley, was therefore indispensably necessary. This could only be done by bringing him in the presence of those who knew him to be Elijah Barber. It was therefore necessary to arrest him to prevent his' leaving the State, that the witnesses might see and inspect him and thus be enabled to speak with certainty who he was. Evén on the trial of the indictment, we infer from the facts stated in the record, that it was doubtful whether the evidence would show him to be Elijah Barber or Jesse Bunkley, for many of the acquaintances and friends Bunkley deposed that he was Jesse Bunkley, and this too after they had had a full opportunity to examine and interrogate him. Under such circumstances the administratrix pursued the only course that could have been adopted to protect the estate from the unjust demand of
2. Mrs. Gerald, the administratrix, obtained an order of the court to retain the personal estate together for ten years, and also to retain the possession of the real estate. She employed the slaves in cultivating the land for the benefit of the distributees. It became necessary to build negro houses and also a gin house, as those left by the deceased had become rotten and dilapidated; she asked to be allowed the reasonable expenses incurred in erecting those buildings, which was refused. It is true that at common law an administrator could not claim to be remunerated for expenses-in building houses on the estate of the deceased, but the powers of an administrator at common law and under our statutes are in many instances widely different. In this State, upon good cause shown, an administrator may be allowed to keep the personal estate together and to retain the possession and cultivate the land for the term of ten years, reserving the widow her right of dower. — Clay’s Dig. 19S-’99. When the administrator has obtained such an order it becomes his duty to manage the estate in a husband-like manner. He should conduct the estate to the best advantage for the interest of the distributees, and should observe the same care and diligence in the management of it that a prudent man would observe in reference to his own. Not only common prudence but common humanity demands of the master that he should provide suitable houses for his slaves, and a gin house is absolutely necessary to a cotton plantation. An administrator who has obtained the right to keep the estate together for the space of ten years, must therefore be allowed the expenses of such buildings, when necessarily erected by him.
3. It also appears that Mrs. Gerald without any order of
4. It was also shown that the intestate did not leave land sufficient to employ his force as profitably as it might have been, and that the administratrix purchased with the money of the estate two tracts or parcels of land which have been cultivated by the slaves, and which appear to have been of considerable value' to it. The administratrix requested that she should be allowed a credit for the amount she paid for the lands, which was also refused. She then requested a credit to the extent of the value of the rents of the land, which was also refused, and the court charged her with the money she - paid for the land with interest thereon, without making her any allowance for the use or profits of the land. That the court erred in charging her with the amount paid for the land with interest, without making any allowance for the use of the land by way of rent, is manifest. But I have had much difficulty in coming to a conclusion what course the Orphans’ Court should have pursued in reference to this question. As the lands were purchased with the funds of the estate, the infant distributee has an unquestionable right to elect whether he will take the land or whether he will claim the money. He certainly is not entitled to both, but he has the right to choose between the land and the money. Can the Orphans’ Court elect for him and order a conveyance during his minority? The Orphans’ Court has full jurisdiction, it is true, to make final settlements of estates in the hands of executors and administrators, and to decree the amount ascertained to be due to be paid to those entitled, but it has no jurisdiction to establish a resulting trust in favor of the distributees, nor to order the executor or administrator to convey to them lands purchased with the assets of the estate. No such jurisdiction is confered on those courts by statute, and therefore they do not possess it.
The view we have taken of the land applies also to the slaves purchased by Mrs. Gerald. The court should have charged her with the amount paid for them with interest thereon, and given her a reasonable credit for the services they rendered the estate, for we can perceive no difference in this respect between the purchase of land and slaves.
In reference to the carriage purchased by Mrs. Gerald and the expenses incurred at the taverns, from time to time, we think they do not form a proper charge against the estate, and must be borne by her alone. If she could show that she visited Montgomery for the purpose of attending to the business of the estate, and that it required her to remain in town for a specified time, we would not say that her reasonable expenses for
Let the decree be reversed and the cause remanded for further proceeding.