9 Ala. 470 | Ala. | 1846
1. Our statutes of distribution are in a great measure founded on the English statute of 22 and 23 Charles 2, but instead of being confined to cases of intestacy only, extend to all goods, chattels and personal estate not bequeathed. [Clay’s Dig. 191, § 1.] The section which allows any person entitled to distribution of an. intestate's estate to petition the Orphans’ Court to compel the administrator to make distribution, after the expiration of eighteen months from the grant of administration, (Ib. 196, § 23,) is similar to a provision of the English statute, fixing the period for distribution at one year from the intestate’s death. [4 Burns’ Ecl. L. 285.] Its effect is not to limit the jurisdiction of the court to those cases only, where no will is made, but it merely ascertains the period when the distribution shall be made, of all the goods, chattels and personal estate not bequeathed. It is in this view of the difference between our statute and the English act, the decisions of the King’s Bench restraining the Eclesiastical Courts from compelling distribution in cases where wills existed, which did not bequeath the entire personal estate, are inapplicable. See Petit v. Smith, 1 Lord Raym. 86; Rex v. Raines, Ib. 363; Hatton v. Hatton, Strange, 865.
2. Taking the statute, then, as ascertaining the period when those entitled to distribution may compel the administrator to distribute the assets of the estate, it would seem to
3. The exception to the decree of distribution, because it distributes the slaves named in the will as emancipated, and those bequeathed to a trustee for their use, is one of considerable difficulty. It is certain the Eclesiastical courts of England have no jurisdiction to make distribution, when a will of any kind exists. See Petit v. Smith, 1 Lord Raymond, 86, and other cases cited, supra. It is equally certain that these courts exercised a jurisdiction to compel the payment of a specific legacy; (4 Burns’ Ecl. L. 265, citing Swinb. 18, Terms de La Ley Devise; Ib. 267, citing 1 Roll’s Ab. 919;) though the courts of common law and chancery seem always to have looked upon its exercise with a jealous eye, and to have granted prohibitions and injunctions, whenever a question purely legal arose, or a trust was involved. [4
4. The pretence that the order of sale obtained by the administrator at a previous day, for the sale of the personal estate, prevented its distribution, may be briefly disposed of. If that had remained unaffected by the injunction, it would have presented no bar to the power of the Orphans’ Court to set it aside. Neither would the fact that it was not carried into effect, furnish the administrator with any excuse to delay the distribution. If a sale of the slaves was necessary to enable the administrator to discharge the demands against
5. The bill in chancery filed by the petitioners, as well as by their co-distributee, Mrs. Moores, even if its object had been the final settlement and distribution of the estate could scarcely be insisted on, as precluding an appeal to the more speedy jurisdiction of the Orphans’ Court, for the reason that was under the control of the petitioners themselves, and would be unavailing if relief was obtained in the other forum ; but without pronouncing a definite opinion how this would be, it is sufficient here to say, that the sole object of this bill is to enjoin the sale of the slaves, and that being obtained, it is questionable if airy other decree can be had, or any course pursued than to dismiss the bill. In our judgment it is no bar to the distribution.”
6. We do not doubt however, that Chancery has jurisdiction, either at the instance of the distributees, to compel a distribution and final settlement; or at the instance of the administrator, to declare the validity or invalidity of the will. The first principle as asserted in all equity courts, and the generale rule is, that Chancery has a concurrent jurisdiction with the Eclesiastical courts, in all cases, and whichever court is first possessed of the cause, has the right to proceed. [4 Burns’ Ecl. L. 266.] The latter is the principle applicable to all trustees, and was extended to an administrator, under a similar will to that exhibited here, in Trotter v. Blocker, 6 Porter, 269. If then, the administrator had first applied to a court of equity to determine the validity of these bequests, or if a declaration by that court was necessary for his protection, it probably would have been proper for the Orphans’ Court to have refrained from a final decree until that direction was obtained; but no such application was made on behalf of the administrator, and the decision of the Orphans’" Court upon the same matter, being equally conclusive in the event that the proper parties are before it, renders it entirely unnecessary to have the opinion of the other court.
7. We come now to consider the exceptions taken to the proceedings for the want of proper parties, and to the refusal of the court to delay the distribution until the representative»
9. The decree, in point of form, contains no substantial error, so far as we have had our attention called to it. It is perhaps irregular, in directing what shall be done upon the return by the commissioners of the distribution of the slaves among the petitioners. In point of practice, the return and
9. We omitted to mention in its proper place, our conclusion as to the will itself. That is so fully covered by the decision of Trotter v. Blocker, 6 Porter, 380, and Coleman v. Alston, 7 Ala. Rep. 795, as to require no other consideration than to state its invalidity, as opposed to our local law. The bequest of emancipation, and that for the use of the slaves intended to be freed, are entirely void.
Judgment reversed and remanded, in order that the representatives of Mrs. Moores may be cited, and made parties if they appear. And also, that the trustee for the slaves may be made a party, if the administrator desires it.