86 So. 43 | Ala. | 1920
The bill prayed injunction against a personal representative to prevent the prosecution at law of an action for damages for the wrongful death of intestate where settlement by compromise had been made with the sole heirs and distributees.
Damages collected in action brought under the homicide act for the wrongful death of an intestate vest exclusively in the distributees of the estate without administration. The administrator is only the holder of the naked title, and this title will not prevail against one to whom the equitable title and rightful possession has passed. Kennedy v. Davis,
Where a person liable for the wrongful death of another compromises therefor, and obtains a release from the decedent's sole heir and distributee, who is under no disability to make such settlement and give such release, and thereafter the administrator of the decedent's estate brings suit for such wrongful death, the release is not solely available at law, but in a court of equity, as the basis for a bill to enjoin a suit at law for such wrongful death. Kennedy v. Davis, supra.
Such is not the rule as against a sole legatee and distributee under a disability — as infancy — where the compromise and release *384
are made, but same have not been affirmed after removal of the disability. That is to say, such rule does not obtain against a minor. Rogers v. De Bardeleben Coal Iron Co.,
Complainant says in argument that, admitting the settlement was not binding on the infants, only they or the chancery court for them have the right of avoidance. The complainant cannot claim the right to ratify the agreement and maintain this suit for affirmance or disaffirmance against the minors. It has been held in other jurisdictions that ratification is as much a personal right to an infant as is disaffirmance. For analogous authority, see Bell v. Burkhalter,
Bills to enjoin an infant's breach of contract for personal services have been held to be without equity. In Cain v. Garner,
"It is a simple contract for the personal services of an infant, for a stipulated compensation to the father. The case, therefore, is reduced to the simple proposition of enforcing the executory contract of an infant. It is elementary law that, except for necessities, an infant may avoid any contract made by him during infancy. 1 Bl. Com. 465; 22 Cyc. 580; Breckenridge v. Ormsby, 1 J. J. Marsh. 236, 19 Am. Dec. 71; Watson v. Cross, 2 Duv. 147; Forsee's Adm'r v. Forsee,
See, also, Aborn v. Janis,
Though the minor has wasted or spent the consideration received, he may avoid a settlement made during minority, without offering to return the money or property received by him or to restore the status quo. Any other rule would deprive an infant of "that protection against his improvidence and incapacity which the law designed." Bell v. Burkhalter,
Aside from this, the cestuis que trustent in instant suit in equity are not made parties to the bill, as required by the rule obtaining in courts of equity. Town of Carbon Hill v. Marks,
The judgment is affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.