118 So. 333 | Ala. | 1928
Appellant's bill brought appellee to an accounting for his administration of the estate of Roberta E. Cooper. Appellee, in virtue of his appointment as administrator, had been in charge of the estate of intestate for 40 years or thereabouts. By appropriate decree it was referred to the register to state the account between appellee and the estate. To the register's report exceptions were reserved, and the rulings on these exceptions furnish the subject-matter of the differences between the parties on this appeal.
In noting their exceptions in the court below the parties complied with chancery court rule 93 by noting "the evidence, or parts of evidence, they relied upon in support of their exceptions." But these notations afford to this court no assistance — or very little — for the reason that the original paging of the evidence has not been reproduced in the transcript. It results that the notations of the evidence filed with the original exceptions mean little or nothing to this court. It is not the province of this court on appeal to investigate items of an account. Its province is to investigate errors alleged and —
"exceptions are to be regarded only so far as they are supported by special statements of the master [register], or by evidence which ought to be brought before the court by reference to the particular testimony on which the exceptor relies." Warren v. Lawson,
However, we have considered the errors assigned by the parties on both the original and cross appeals as well as we might, without assuming the functions of the register or undertaking a restatement of the account between the parties covering a period of 40 years. Curtis v. Curtis,
1. By his second exception to the register's report, which we consider in the first place, appellant McCraw, heir at law and distributee of appellee's intestate, complained that appellee should have been charged in appellant's favor with one-sixth — the interest of appellee's intestate — of a large sum, the alleged difference between the value of intestate's interest in a tract of land, a part of the estate of C. J. Cooper, deceased, father of appellee's intestate, and the price at which that interest was by appellee, along with the three other executors of the will of C. J. Cooper, through an intermediary, purchased at their own sale under an order of the probate court. The sale complained of had only the informal approval of the court, as evidenced by the judge's indorsement of confirmation on the report of sale; but that indorsement will serve to show a confirmation for the purpose of this proceeding. Worthington v. McRoberts,
Conceding appellant's right, on timely application, to have the sale set aside, had the administrator been without personal interest in the property — no right of third parties intervening — and this whether his purchase was direct or through the agency of one who subsequently conveyed to him (Calloway v. Gilmer,
Had appellee not been interested as heir and distributee in the estate of C. J. Cooper, it may be conceded that the right of appellant to set aside the sale in question, so far as that right was affected by the mere lapse of time, could have been foreclosed only by bringing the trust, the administration to a final settlement. But appellee, along with the other executors, heirs, and distributees of the estate of C. J. Cooper, such others, by the way, having agreed to the purchase by appellee and his coexecutors, was equally interested with appellant's intestate in the land, so that the principle which forbids a trustee to purchase at his own sale was in this case limited by the further principle that, if the sale would be avoided, prompt action to that end should have been taken. Brannan v. Oliver, 2 Stew. 47, 19 Am. Dec. 39; James v. James,
The sale in question was made in December, 1903. Appellant reached his majority in 1911. His bill to remove the administration from the probate into the circuit court in equity was filed February 13, 1925. The settlement under review was approved by decree on January 13, 1928. As we have noted, the heirs of C. J. Cooper, other than the heirs of Roberta E. Cooper, then deceased, including appellee's coexecutors, agreed among themselves on the price to be bid in their behalf for the land, which was sold at public auction. Appellant and the other heirs of Roberta E. Cooper were then minors, and were represented in the probate court proceedings by a guardian ad litem; so that the sale turned out to be a sale of the one-sixth interest of the minor heirs aforesaid. There is no proof of fraud, or that the sale at public auction was unfairly conducted, and, though much evidence was taken in the chancery court (circuit court in equity) on the question of value, if appellant were now in position to bring that matter into review, we probably would be compelled to affirm that the interest of the minors was not adequately valued in the price bid on behalf of the adult heirs. However, as to that neither the register nor the chancellor expressed any opinion; the register's judgment, apparently concurred in by the court, being that the decree of the probate court confirming the sale was conclusive in the cause now under consideration. In that judgment we concur, to this effect, at least, that the validity of the purchase thus sought to be brought into question cannot be litigated in this cause, from which all the parties in interest are absent, save only appellant and appellee; appellant being one of several heirs of one of several devisees under the will of C. J. Cooper, and appellee being one of several devisees and one of four coexecutors under that will. Another sufficient reason conduces to the same conclusion.
"Long acquiescence in the purchase" — in this case acquiescence for 14 years after appellant came of age — "of which no just and reasonable explanation is offered, disables the cestuis que trust from coming into a court of equity to avoid the sale, or to assert that it was in trust for their benefit. * * * Unexplained acquiescence is a waiver of the right. * * * He must show how and when he first came to a knowledge of the facts." James v. James, supra.
2. The first exception to the register's report complains that appellee, as administrator of the estate of Roberta E. Cooper, was not required to account for a legacy of $2,000, with interest thereon, due to her from the solvent estate of her father, which amount appellee, it is alleged, failed to collect and account for. This legacy was payable out of testator's general estate. Kelly v. Richardson,
Appellant's suggestion is that the will was ambulatory until the death of testator, meaning, as we understand, that the $1,500, receipt of which was acknowledged, cannot be held to have been on account of the legacy of $2,000, for the reason that the will became effective only upon the death of testator, when the legacy must be considered as having been fixed, without reference to what had gone before. But we find no difficulty, so far as concerns the receipt of $1,500 from testator, in treating that amount as a credit upon the legacy, if that was the legatee's agreement with testator as the receipt indicated the case to have been. And this, in connection with the excess of $500 over the other children and legatees of testator (with one exception for which no explanation is offered), paid shortly after the death of testator, together with the fact that very clearly testator intended that the beneficiaries of his will should account for all advances, furnishes sufficient reason for our agreement with the register and the court below as to this exception to the register's report.
3. Appellant complains that there was great delay in collecting the assets of the estate of Roberta E. Cooper; that other devisees and legatees under the will of C. J. Cooper were allowed, through business houses in which they were interested, to have the use of assets of the estate; and that appellee *190 reserved for his own use commissions on collections and disbursements without an order of allowance by the court. But the exceptions to the register's report which may be accepted as bringing these complaints to the attention of the court are so presented in the briefs on appeal that we are unable to definitely locate any result that would be of benefit to appellant. If there was error against appellant in respect of the legal principles involved in the accounting, it has not been made to appear on this appeal. Devisees and legatees under the will of C. J. Cooper, other than Roberta, under whom appellant claims, were allowed to make use of their interests in the estate of their testator for many years and in advance of a legal settlement of the estate; this, it seems, by the competent mutual consent of all parties in interest, except the minors in the class with appellant, children of Roberta, who died very soon after the death of her father, C. J. Cooper. There is no complaint on behalf of creditors, and the other devisees and legatees of C. J. Cooper are not complaining, of course. Appellant can be heard to complain only in so far as that manner of dealing with the estate prejudicially affected his individual interests. The will of C. J. Cooper was admitted to probate April 8, 1886. O. W. Cooper, a son of testator, D.C. Cooper, appellee, another son, and two sons-in-law, were appointed as executors and undertook to administer the estate. The complaint now is that appellee failed to bring the estate of C. J. Cooper to an earlier settlement, and that he should now be charged with interest on the various sums that came into the hands of these executors during the long period in which the settlement of that estate was pending. There was a final settlement in the probate court of Calhoun county of the estate of C. J. Cooper on November 15, 1920. But that was a settlement by agreement among the devisees and legatees; D.C. Cooper, appellee, included. As has appeared, appellee, was during that time administrator of the estate of Roberta E. Cooper, under whom appellant claims, and represented the estate of Roberta as well as his own interest in the estate of C. J. Cooper.
Appellant now suggests that he should not be bound by the results of that settlement, for the reason that he was not represented there, except by appellee as administrator. Our opinion is that appellant, as well as the immediate parties to that settlement (Smith v. Williams,
Aside from the matters heretofore considered, appellant does not question the register's report, except in the matter of appellee's alleged failure to make distributions promptly, and on that account seeks to charge appellee with interest. It is held that an administrator cannot excuse delay, depriving distributees of the use of money which ought to have been paid to them, on the ground that parties in interest have not resorted to compulsory proceedings against him. The statute contemplates that the administrator shall become the actor in proceedings for a final settlement. Clark v. Knox,
On behalf of appellee, as cross-appellant, it is urged that the final decree in this cause in the chancery court was error, for the reason that there was no note of testimony. Lunday v. Jones,
Further, it is urged that there was no proof of the special equity upon which the order of removal from the probate to the circuit court in equity must be rested. At first the circuit court, on the filing of the bill in this cause and upon affidavit, made evidently upon the assumption that section 6478 of the Code governed the case, made an order *191
removing the administration into the circuit court, equity side. Afterwards the court vacated the order of removal on the ground, ascertained and determined by the court, that the probate court had taken jurisdiction for the final settlement of the estate before the filing of the bill in this cause. Upon appeal to this court from the last-stated order, a reversal was adjudged on the ground that the bill for the removal of the administration to the circuit court averred a special equity on account of which appellant was entitled to a removal of the administration without regard to the provision of section 6478. McCraw v. Cooper,
Finally, cross-appellant complains because the court charged him with interest on commissions retained before the court passed an order allowing them. Kenan v. Graham, supra, and Noble v. Jackson,
"This rule, it seems to us, is a wise and conservative one, a disregard of which would tend to tempt the administrator or executor into misconduct in the administration."
In rendering his accounts for partial settlements in 1889 and 1905, appellee claimed commissions on receipts and disbursements up to those dates. But the transcript of the record of the probate court shows no evidence of any order or decree by that court allowing such commissions. Cross-appellant would invoke the doctrine of prescription, based on the lapse of 20 years, after which, in general, it will be presumed that orders were then made in the probate court allowing the commissions claimed. We would not deny that it was competent for the probate court then to have made such orders, though the contrary rule prevails in some jurisdictions. 11 Am. Eng. Ency. Law (2d Ed.) 1280. But the doctrine invoked by cross-appellant rests upon the theory that there has been laches on the part of one who, having the right and capacity to draw into question the status asserted against him, neglects or omits to do so for a period of 20 years. Woodstock Iron Co. v. Fullenwider,
Affirmed on both appeals.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.