50 Ala. 319 | Ala. | 1874
This is a suit in equity. It was commenced on September 23, 1869, by Sarah W. Stanley as complainant, against Templeton C. Millsap and Elizabeth T. Stanley as executor and executrix of the will of Lewis Stanley, deceased, and Templeton C. Millsap as administrator of the
The bill shows that said Lewis Stanley died in said county of Barbour in this State, in the year 1855, leaving a will, by which he disposed of his estate, real and personal. This will was duly proven, and admitted to record, in the probate court of said county of Barbour; and letters testamentary were thereupon duly issued to said Templeton C. Millsap as executor, and to said Elizabeth T. Stanley as executrix of said will, on October 26, 1855 ; and they gave bond as such, and undertook the administration of the estate of said testator under said will. John W. Clark, Whitfield Clark, and one William Ivey were the sureties on said bond of said executor and executrix. The will is made an exhibit to the bill; and it appears from its recitals, that said testator “gave and bequeathed, after payment of his debts,” to his wife, said “ Elizabeth T. Stanley, and her three children, John W. Stanley, Parmeneus B. Stanley, and Sarah W. Stanley,” then a minor, who is this complainant, “ certain lands and appurtenances,” and also certain personal property, all of which is described in said will; said property “to be used for the support ” of said legatees, and “ the education said children; ” and when said Sarah W. Stanley “ became eighteen years of age, the whole to be sold and divided between said Elizabeth T. Stanley and her three children ” aforesaid; and the residue of the testator’s estate is then given to his certain other children, who are named in the will.
The bill further shows, that the said representatives of said testator returned into said probate court an inventory of his estate, and sold, under proper order therefor, all the real and personal estate of said testator (except that given to said Elizabeth J. Stanley and her said three children), which brought the sum of $3,517, due in twelve months from January 2,1856. It further appears that, in the said administration of said testator’s estate, said representatives made final settlement and distribution of that portion thereof given to said residuary legatees, in October, 1858, by order of said court of probate ; and they then had in their hands, for distribution among said residuary legatees, the sum of $3,000.20, which was distributed, and said legatees last said were paid in full; but no final settlement was then made of that portion of said testator’s estate given to said Elizabeth and her said three children. After this, on December 18, 1861, said representatives filed their petition in said court of probate, asking an order for the sale of the slaves,
It is alleged, also, that under authority of some proceeding in the chancery court of Barbour county aforesaid, the land devised to Mrs. Stanley and her said three children was sold; but it is not stated when or why this was done. The sum thus realized for said land was $1,438.50. It likewise appears, that said representatives, on August 5, 1857, submitted to said probate court what purports to be a return of the cotton crops, and expenditures for and on account of the said Elizabeth Stanley, Parmenius B. Stanley, and complainant, during the years 1855 and 1856, in which return the reported net proceeds of said cotton crops are put down at $1,282.72, principal and interest. This seems to have been treated as an annual settlement, by which it was shown that there was a balance in the hands of said representatives of $911.62. It further appears, that there was another attempt at an annual settlement of said estate in said probate court, on October 14, 1861, when there was a
Complainant became of the age of eighteen years on January 19, 1862, and of the age of twenty-one years on January 19, 1865. Said John W. Stanley died before the filing of the bill, and said Millsap is the administrator of his estate. It is also averred, that complainant, John W. Stanley, deceased, and Parmenius B. Stanley, are the three children of said Elizabeth Stanley, named as legatees in the said will of said testator. It is further shown, that on June 15, 1864, said representatives filed in said probate court $1,500.00 in Confederate States bills, which had been funded in Confederate bonds, as belonging to the heirs of said estate, and thereupon asked said court for an order ratifying said investment; and an order was made on the same day by said court, that said representatives “ be allowed to invest money of said estate in Confederate bonds.” Said representatives claim credit for this investment; but the bill charges that it is illegal and void. It is also averred “that said estate is ready for final settlement and distribution, and-should be divided among the persons entitled to the same, in accordance with the provisions of said will; ” and that the residuary legatees under said will have no interest in that portion of said estate which remains unsettled. It is also shown that said William Ivey is insolvent, and a discharged bankrupt under the laws of the United States. The prayer of the bill is for general relief, and for an account and final settlement and division of said estate under the provisions of said will, and that said representatives pay complainant what is yet due her as her legacy. A copy of the proceedings in said probate court, as-
Only Millsap, as executor of said Lewis Stanley, deceased, and Whitfield Clark, answer the bill. Decrees pro confesso are taken against Mrs. Stanley, Parmenius B. Stanley, and Millsap, as administrator of the estate of John W. Stanley, deceased. These decrees are not entered in full, but in the words following: “ On motion of complainant, decree pro confesso is granted against Elizabeth Stanley and Parmenius B. Stanley, defendants.” A decree in similar form is entered against Millsap, as administrator of the estate of John W. Stanley, deceased. No notice is taken of John W. Clark, who seems to have been dead when the bill was filed. The answers of Millsap and Clark substantially admit the proceeding in said probate court, as alleged in the bill, and the other facts stated in the bill as to the right of the complainant, except the charges of fraud and invalidity of the said proceedings in said probate court, and set up the statute of limitations in bar of the correction of the errors in the settlement in the said court of probate; and insist that these proceedings are valid, and discharge the executor and executrix from further accounting. They also demur to the bill for want of equity, and for mis-joinder and non-joinder of parties.
The chancellor decreed, that complainant was entitled to relief, and ordered a reference to the register to take and state an account, and report in the usual form, between the complainant and representatives aforesaid. No notice is taken of the demurrers. The errors assigned in this court are, the overruling of the demurrers, and the decree of reference, and the failure of the chancellor to dismiss the bill. The appeal is taken by Millsap and Whitfield Clark, in the names of all the defendants ; but only Millsap and Clark insist on the assignment of errors.
There is no decree against the parties against whom the irregular decrees pro confesso were entered, except Mrs. Stanley, and she does not complain. This, then, is not a ground of error in favor of the appellants. It does not injure them, and they have no right to complain of it. As to these appellants, it is error without injury, if error at all.
The second assignment of error is, that “ The court erred in rendering judgment against John W. Clark, when the record shows that he was not served.” There is no decree against John W. Clark, who was probably dead when the bill was filed. This assignment, then, is not sustained by the record.
The joining of the administrator of John W. Stanley, deceased, who was one of the legatees, does not make the bill multifarious. This was admissible, as above shown.
The fifth assignment of error is but a repetition of the fourth ; and for like reasons it is untenable. Millsap alone, as the administrator of the estate of John W. Stanley, deceased, who was a legatee, was made a party defendant to the bill, and not his sureties. This was proper.
There is no error in the record as presented by the assignment of errors. The judgment of the court below is consequently affirmed, at the costs of the appellants, Millsap and Clark, who alone prosecute the appeal in this court.