45 Ala. 275 | Ala. | 1871
Lead Opinion
This is a bill filed by George Elrod and James G. L. Huey, to restrain the administrator de bonis non, with the will annexed, of the estate of Edward Huey, deceased, from enforcing the collection of a decree rendered in the probate court of Talladega county, in favor of said administrator against the administratrix-in-chief of said estate and her sureties, for the sum of $5,921, upon the grounds that the said administratrix was the principal legatee of said estate, and that she had conveyed to a trustee her interest therein, in favor of her said sureties, a part of whom are the complainants, for the satisfaction of said decree; which interest abovesaid was in possession of said administrator. The judgment of the probate court was enjoined, and the injunction was made perpetual. From this decree of the chancellor Henderson appeals to this court.
The bill was demurred to by the administrator, and four several grounds of demurrer were assigned. 1st. There is no equity in the bill. 2d. The complainants do not propose to pay the amount due on the decree sought to be enjoined. Bd. That the bill does not show that the payments made to the administratrix were made without the knowledge and consent of complainants. 4th. That the bill does not show that complainants or their trustee in the deed ever notified the administrator not to pay the administratrix money. This demurrer was overruled by the court below, and the error assigned upon it must first be disposed of, before considering the merits of the case.
In the case of Perrine v. Fireman’s Insurance Company, it is laid down as a well established principle, that, “ where a creditor has the means of satisfaction in his hands, and chooses not to retain it, but suffers it to pass into-the hands of the principal, the surety to that extent will be discharged. — 22 Ala. 585. But there must be, in such case, some lien or some right to hold such means and apply them in satisfaction of the principal’s liability. A principle almost identical with this had been previously maintained and affirmed in the case of Allen, Adm’r, v. Greene, 19 Ala. 34. There, Chilton sold a tract of land to Bruton on a credit, and gave bond for title in the penalty of four thousand dollars, upon condition if a sufficient title in fee simple was made to Bruton, then the bond to be void. Greene was the surety of Chilton on this bond. Bruton died before making any payment of the purchase money, and, after his death, Allen as his administrator brought suit at law on the bond against the surety, and alleged a failure to make title as a breach of the bond. There was’no title in Chilton when he sold the land, but he bound him
These principles, applied to this case, show that tbe chancellor did not err in refusing to sustain tbe demurrer for want of equity.
Tbe second ground of demurrer is not well taken. Tbe bill does not show that there would be any balance due on tbe decree, after the funds in tbe bands of tbe administrator were applied to its satisfaction. Tbe decree was for something less than six thousand dollars; tbe funds received for its payment were above eight thousand dollars. This was equivalent to an allegation that there was nothing to be paid on tbe decree after applying tbe funds secured by tbe mortgage, which were in tbe bands of tbe administrator de bonis non.
Tbe third ground of demurrer is not sustained by tbe record. It is alleged that tbe payments to tbe administra
The fourth objection raised by the demurrer is also ill taken. The deed devoting the funds in the hands of the administrator de bonis non to the satisfaction of the decree, was properly executed and recorded. This was notice to all the world of its purpose and its contents. — Rev. Code, § 1543. Such notice was enough to show that the property conveyed in it could not be paid to the administratrix without a violation of the trust. The deed was made for the indemnity of the sureties, and this forbid such a payment as was made and complained of in the bill, without a reservation of a sufficiency to satisfy the debt intended in the mortgage to be secured. The funds having been placed in the administrator’s hand for the payment of the debt secured, it was, pro tanto, a payment of the debt, unless the funds were lost or destroyed without his fault, before they could be converted into money and applied, as required by the deed. The administrator, de bonis non was the creditor, and as such he was entitled to hold on to the funds deposited in his hands for the payment of his debt, and it was his duty to do so. The trust was created for the better security of the debt, and attached to it. — Ohio Life Insurance and Trust Co. v. Ledyard, 8 Ala. 866; Feagan et al., Adm’rs, v. Kendall, 43 Ala. 628. This disposes of the demurrer, as well as the motion to dismiss for want of equity.- — Calhoun v. Powell, 42 Ala. 645.
The decree of the probate court was rendered in 1858. It was in favor of Henderson, as the administrator de bonis non, against Mrs. Simmons, as the administratrix-in-chief of the same estate, upon her final settlement. The deed to indemnify her sureties by subjecting her interest in her deceased husband’s estate to this purpose, was executed and recorded in 1856. The conveyance by herself and husband to Knox, as her trustee for this purpose, was a valid deed. Her first husband died in 1852 ; she derived her title from his will, and it is an absolute and unconditional title, and the will directs that she shall take possession immediately after the testator’s death. Under the act of 1850, this
Thus, it appears that upon authority of the principles settled in the above mentioned cases, that the administrator de bonis non was bound in good faith to apply the funds in his hands, placed there by Mrs. Simmons for the indemnity of her sureties, to their discharge; unless they consented that these funds might be otherwise disposed of. If the sureties consented that the administrator might be at liberty to make payments to Mrs. Simmons, after the execution of the deed, out of the means conveyed by the deed, they have no right to complain. In such a case, they may waive their rights by consent. Consensus facit legem. Branch Princ.; Woters v. Creah, Ex'r, 4 S. & P. 410; S. C, 3 Smith Cond. Rep. 269. But the ninth paragraph of the bill alleges that the amount of Mrs. Simmons’ legacy, which came into the administrator’s possession and control, was largely in excess of the amount of the decree against her and her sureties, after deducting all sums legally paid out on account of debts due from testator, and the expenses incurred in the prudent administration of said estate. It is also alleged that the payments to Mrs. Simmons were about eight thousand dollars, which were made without the consent of the sureties, who were the beneficiaries in the deed and these complaints. These charges are positively and directly made. They are not met by a direct denial, nor by such explanations as amount to a denial. But it is denied that these payments were made with
It now only remains to notice the exceptions to the report of the register, which were overruled against the respondent Henderson’s objections. There were four of these. The decree upon the merits on final hearing necessarily closes all'questions save those referred to the master for further inquiry. Hence, no new questions outside the instructions given in the order of reference can be raised on the hearing before the master.
. This order confines the inquiry of the register to the ascertainment of the amount of the decree mentioned, and the amount of the payments specified in exhibits I) and E. Under this order, any payments made upon the decree might be shown and allowed, or any mistakes of calculation in the items specified in exhibits D and E might be corrected. Beyond this the register could not go. But for these purposes he could hear any legal testimony that might be offered by either party. — Lang v. Brown, 21 Ala, 179; Royall’s Adm’r v. McKinzie, 25 Ala. 363. Under this reference, the respondent, Henderson, proposed to offer in evidence the record of a partial settlement of Henderson . as administrator de bonis non with the will annexed of the estate of said Edward Huey, deceased, made in the probate court of Talladega county, on the 11th day of June, 1861, and prove by oral evidence at the same time, in con
The second exception is founded on a refusal of the master to admit evidence on the hearing before him to show that a portion of the receipts of Mrs. Simmons, in one of said exhibits, wmre given for Confederate money, and to have them scaled and reduced to a currency value under the proof. This would have been a departure from the decree and order- of the chancellor. Besides, it is not pretended that Henderson did not use such funds as money. If he did, he ought to account for it as money. He had no authority, under the pleadings in this case, to convert Mrs. Simmons’ legacy, or the assets of the estate of Huey, into such funds.- — Hall v. Hall, 43 Ala. 488 ; Houston v. Deloach, 43 Ala. 364. This also includes the fourth exception, as it rests on a like objection.
The third exception is in these words: “ The register ought to have received proof offered that respondent, Henderson, had paid to Mrs. Simmons three thousand dollars out of his own means beyond her interest in Huey’s es- • tate, and that no assets had ever come to his hands out of which to reimburse him.” It is not perceived how this exception could arise out of the proceedings before the register. There is no allegation in the bill, or in Henderson’s answer, which made it a part of the case before the chancellor. It is wholly new matter, outside of the pleading made in the record. I know of no authority or principle of chancery practice which would let it in, in this way. Henderson was not entitled to any reimbursements out of Mrs. Simmons’ legacy in his hands, until the liability of the sureties was discharged; because her whole interest had been incumbered for their indemnity by the deed to Enox. Besides this, the exception is not single and definite. It is made to rest upon the double facts that
The decree of the chancellor in the court below is in all things affirmed, at the cost of appellant, Henderson, in this court and in the court below.
Rehearing
A rehearing is not a new trial. For this reason, the court will not consider questions not made on the original hearing. The only questions raised on the assignments of error were as follows : 1. The equity of the bill; 2. The interlocutory order of reference to the master ; 3. The exceptions to the master’s report; and 4. The final decree of the chancellor. No errors outside of these will be noticed -on such an application as this. — Long v. Rodgers, 19 Ala. 321; McGill v. Monette, 38 Ala. 49. From the decision on the questions thus raised the court is not willing to depart.
The rehearing is therefore denied, with costs.