King v. Smith, 15 Ala. 264

King v. Smith

15 Ala. 264 | Ala. | 1849

CHILTON, J.

It is perfectly manifest that the complainants below were not entitled to a decree. No statute was in existence at the time of the filing of the bill, authorixing them to have an account of the assets, which were wasted, embezzled, or misapplied by the administrator in chief. The administrator de bonis non, as the title of his office implies, can only recover such property of a personal character be* *269longing to the decedent, as remains unadministered. So in Chamberlain’s adm’r v. Bates’s adm’r, 2 Porter’s Rep. 550, which was afterwards affirmed in Moore v. Armstrong, 9 Porter, 704, it was held, the authority of the administrator de bonis non embraced only such assets as remained in specie, unaltered or unconverted by the former administrator or executor. The remedy, as indicated by the case last cited, is for the distributees, or creditors, to file a bill in equity against the delinquent administrator, if living, or his representative, if dead, to recover for the waste or conversion of the assets. See also, Willis v. Willis, 9 Ala. Rep. 721, and Price v. Simmons’ adm’r, 13 Ala. 749. This bill, so far as it seeks to charge the executor with a devastavit, is clearly without equity.

But there is another, and a fatal objection to the relief sought. The defendant, Steele, pleads that he has made a full and final settlement with the orphans court, of Smith’s administration of the assets of the estate, which came to his hands, and the duly certified records of the orphans’ court, in which the settlement was had, fully sustains the plea. If then, the orphans’ court had jurisdiction to make the settlement, and that jurisdiction attached before the exhibition of the complainant’s bill, it is too plain a proposition to require the citation of authority, that the settlement forecloses the complainants, and is a final adjustment of the whole matter in controversy. The well established rule is, that in cases where two courts have concurrent jurisdiction, the court which first takes the cognisance of the cause, retains it to the exclusion of the other. Eaton v. Patterson, 2 Stew. & Por. 9; 16 Mass. R. 171; Ib. 203; 1 Hawks’ R. 78; Smith v. McIvor, 9 Wheat. R. 532; 3 Yerg. Rep. 167.

In this case, the orphans’ court first moved in the matter of the settlement, on the 12th December, 1837. A settlement was subsequently made, but reyersed by this court in June, 1843. Again, on the 29th February, 1844, the record shows, that said Smith having filed his accounts and vouchers for final settlement, the orphans’ court ordered the necessary publication to be made for forty days, for all persons interested to attend the final settlement of said Smith’s account as executor, <§-c. on the third Monday in April then next. *270On the day appointed, viz: the 15th April, 1844, the final settlement was made, and entered of record, [by which it appears that the estate of Jeremiah Smith, deceased, was in arrear with said removed executor, in the sum of $2,351 99. This bill was filed the 5th April, 1844, and the subpoena was not executed until the 12th of July following. The jurisdiction of the orphans’ court having first attached, and that court having passed a final decree embracing the subject matter of the bill, in the absence of fraud, or some other special cause for equitable interposition, the chancery court has no right to interfere with the decree, which has thus finally and fully adjusted the rights of the parties. This case is unlike the several cases decided by this court, in which the chancery court was held properly to have taken jurisdiction. See them referred to in Dement et al. v. Boggess’s Adm’r, 13 Ala. Rep. 140. For here the. complainants have submitted without objection to a final decree, made by the orphans’ court, on proceedings instituted before filing their bill, which decree is conclusive, until some cause is averred, find shown, authorizing the chancery court to overhaul it.

But it is insisted by the counsel for the plaintiffs, that upon the removal of Smith as executor, the orphans’ court had no power to make with him a decree of final settlement which should conclude them.

This point was expressly decided in Nolly v. Wilkins, 11 Ala. Rep. 872, where it is said, “ the orphans’ court has power to settle the account of a removed administrator, either on his voluntary application, or on the application of those interested. And that there is no difference as to this question between a removed administrator, and one voluntarily resigning his trust; in either case, we consider it clear, the orphans’ court has this power.”

. These views are decisive of the case before us, and render it unnecessary that we should notice the various other questions made in the argument.

It results, that the chancellor did not err in dismissing the bill. Let his decree be affirmed at the cost of the plaintiffs in error.