22 Ala. 478 | Ala. | 1853
The nature of the jurisdiction conferred by statute on the Probate Court, touching the settlement and distribution of estates, is two-fold. One branch of this jurisdiction is to make partial settlements and distribution; the other is to make final settlements and distribution. In respect to each, the mode of proceeding prescribed by the statute must be substantially pursued; otherwise, the judgments will be not voidable merely, but void. This is a familiar doctrine, for which it is not necessary to cite authorities.
Partial settlements and distributions may be made with one or more of the parties in interest; and after the lapse of eighteen months from the grant of letters, any distributee or legatee may compel an executor or administrator to deliver over a specific legacy, or come to a settlement and make distribution. Clay’s Dig. 196, §§ 23, 24; Graham v. Abercrombie, 8 Ala. 552.
'When cited by any legatee or distributee, proceeding for himself alone, to make settlement and distribution, it devolves on the executor or administrator, if he wishes to conclude any other of the parties in interest by the settlement and distribution he proposes to go into, to make them parties by notice or citation to that effect. It is accordingly his right to have all the parties in interest cited, and made parties to the settle
An order or decree of the Probate Court for the delivery of a specific legacy, or for the partial distribution of the assets or property of an estate, is always interlocutory; and in such cases, a refunding bond should always be required. Sankey v. Ellsberry, 10 Ala. 455; Clay’s Dig. 196, § 23.
So much for partial settlements and distribution, and the jurisdiction of the Probate Court over them.
What, we come next to inquire, is the nature and extent of its jurisdiction in respect to the final settlement and distribution of estates.
When an executor or administrator proposes, of his own accord, to make final settlement, or when he is cited so to do by any one having an interest, the statute requires that he shall file his accounts and vouchers with the Probate Court, and also a list of the “ heirs and legatees” under oath, specifying in his statement which are minors, feme coverts, or persons non compotes, that the court may know how to proceed, and in whose favor a decree is to be rendered, when the estate is ready for final distribution.
When this much is done by the executor or administrator, the statute makes it the duty of the probate judge to order publication of notice for a specified period, before the day set for hearing the final settlement, giving notice of the day appointed, and requiring all persons adversely interested to appear on that day, and contest if they see proper. Clay’s Dig. 229, § 41; ib. 304, § 38.
To give the court jurisdiction to make a final settlement of the accounts of the executor or administrator, and to render a final decree of distribution thereupon under this statute, it is indispensable that the notice required by the statute should have been given, or that all the parties in interest should be shown to have been present at the settlement. And to give any validity to the decree of distribution as a final decree, it must make distribution among all those who appear by the record to be parties in interest. Whatever else a settlement made with the Probate Court, and a decree based upon such
Tried by these principles, neither the settlement and decree which was made in March, 1839, by the Orphans’ Court of Marion, nor the subsequent settlement and decree which was made in May, 1851, is final; the former, because the court does not pretend to distribute all the assets; the second, because no notice of the settlement was given, and there were no other parties present at that settlement but Caughman and wife on one side, and the administrator Hollis on the other. Other irregularities in the proceedings in both instances intervene; but these objections to the settlements and decrees as final decrees are fundamental, and go to the jurisdiction; and consequently we are compelled to notice them, even in the absence of an assignment of error directed to them.
The decree of the 12th May, 1851, purporting on its face to be a final decree, and the court having awarded execution upon it, although it is in fact not a final decree, must be treated as such so far as to authorize a revision on writ of error.
In the settlement between Caughman and wife and the administrator, it appears that the court below charged the administrator with interest on the money coming to Caugh-man’s wife as her distributive share according to the order or decree of the court in March, 1839, from the date of that order until the time when he paid it; and this is assigned for error. It was entirely proper to charge him with interest upon this money remaining in his hands, unless he denied on oath that he had used it, or unless, if that statement were made by him, it were successfully controverted on the other
For the error of rendering what purports to be a final judgment or decree in favor of one of the distributees, when the record discloses that there are others, and before final settlement, the decree is reversed, and the cause remanded.
