40 Ala. 533 | Ala. | 1867
In 1857 the appellees caused a citation to be issued from the probate court of Madison county to the appellant, requiring him to appear and show cause why he should not make a final settlement of his administration of the estate of James McCartney, deceased. He appeared, and for cause averred,' that McCartney died, intestate, early in the year 1831; that on the 29th day of August of that year, the then orphans’ court of said county granted letters of administration to one of the appellees and appellant; that they gave a joint administration bond, “qualified, and took on them the burden of said office ”; that said appellee has never resigned her said office, nor have said letters in any manner been revoked or vacated ; that appellant, on the 9th day of November, 1841, filed an account between himself and said estate, as such administrator, and his vouchers for a final settlement of his said administration ; and that on the 9th day of November, 1841, the then judge of said court allowed said account, and made a decree thereon.
Upon these facts, the appellant objected to state and file any ac'count of his said administration, because of the lapse of time since the grant of administration. The court overruled the objection, and appellant excepted, and then filed an account, upon which a decree was rendered against him.
It appears that over twenty-five years elapsed after the grant of letters of administration, and before the commencement of this proceeding; and more than twenty years after appellant could have been called upon to make a final settlement of his administration of the estate. Upon such a state of facts, the objection of the appellant was well
The fact that appellant, in 1841, filed an account for a final settlement, upon which a decree was rendered, without notice to the distributees, does not relieve the case from the influence of the principles settled in the cases above cited. The tendency of the fact was not in conflict with the presumption that a final settlement with the distributees had been made by appellant; but it was entirely consistent with, if not in corroboration of, such a presumption. Without asserting that the lapse of twenty years raises a conclusive presumption of such a settlement, (as to which, see the case of McArthur v. Carrie’s Adm’r, supra,) we are satisfied that the evident result of the decisions of this court, and of the reasoning employed in the opinions thereof, is the establishment of the rule, that after the lapse of twenty years from the time when an administrator may be called upon to make distribution of the estate of his intestate, he cannot be compelled to make a distribution thereof, unless he has made some admission binding in law, or done some act which will remove the bar created by the presumption in favor of a settlement with the distributees; and no disability on their part, such as infancy or marriage, will avail to rebut the presumption. If so, then the reasoning in the' cases of Rhodes v. Turner, Barnett v. Tarrence, and Austin v. Jordan, is unsound. It is said in the first case, and quoted in the other two, that, “ if the parties allow this period to elapse, without taking any steps to compel a settlement, we think the presumption of payment arises, and the executor or administrator should be exempted from the necessity of hunting up evidence, to prove the accounts and vouchers which ordinarily enter into such settlements, and which, after such a lapse of time, it would perhaps be impossible to obtain. The period of twenty years, we- apprehend, would date from the time
"We admit that other courts have made decisions adverse to this view, and have allowed deductions to be made on account of such disabilities. In the cases of Milton v. Haden, and McArthur v. Carrie’s Adm’r, supra, it is decided that this presumption maybe overturned; but that “proof, to be effectual for this purpose, m m-t be addressed to the character of the plaintiff’s possession, either in acquisition or use.” This was said with reference to the possession of personal property for twenty years; and we see no reason why the same rule should not be applicable, by analogy, to a legal duty or obligation of this'character.
Much strength is given to this conclusion, by a reference to the powers which our statutes have always conferred on the orphans’ and probate courts over the settlement of administrators and estates. The presumption is one in favor, and for the protection, of administrators. This presumption does not apply, where the. statute of limitations is applicable, except so far as section 2486 of the Code does so; and therefore the provisions of that section do not apply to a case like this. This rule has been so long acquiesced in, as to become a rule of property, which should not be unsettled without the highest and weightiest reasons and considerations. If a disability should exist through the whole period of twenty years, and there should be no one authorized by law to receive payment for the party to whom the disability attached, then an exception might be made in favor of such party, similar to the one allowed where staleness is insisted on as a bar to an equitable demand. But that question does not arise in this case, and we intimate no opinion upon it. — Johnson v. Johnson, 5 Ala. 90.
This view of the case relieves us from the necessity of an adjudication of the other questions raised by the assignments of error, and discussed by counsel; especially, as upon another, trial the facts may be materially variant.
