58 Ala. 443 | Ala. | 1877
The present bill does not seek to set aside any of the sales of the executor. On the contrary, it ratifies and confirms them, and claims relief solely on the ground that all the sales made*were valid and binding. The executor and purchaser from him, can not be heard to controvert the legality of their own sales and purchases, because each is estopped, so far as they are personally concerned. — Pistole v. Street, 5 Por. 64; Hopper v. Steele, 18 Ala. 828; Lamkin v. Ruse, 7 Ala. 170; Elliott v. Branch Bank, 20 Ala. 345; McCausland, v. Drake, 3 Stew. 344.
Hence, we hold, that in this case we need not inquire whether the sales were or could have been made under the powers contained in the will, or under the orders of the Probate Court. — See McRae v. McDonald, 57 Ala. 423.
The present bill was filed by James B. Morris, grandson of Thomas A. Morris, and seeks primarily and mainly to recover of the executor of the latter’s will — William G. Morris — and his sureties on his bond as executor, the legacy given by the will of said Thomas A. to Thomas W. Morris, father of complainant, now deceased. This feature of the bill makes, and very properly makes, the executor of the will, his sureties, and the other legatees under the will, parties defendant. The complainant seeks to recover $2,550.61 from the executor and his sureties, being the sum found due the children óf Thomas W. Morris, on the statement and allowance in the Probate Court of the executor’s accounts, filed and made in March, 1864. This account current contained a statement of the entire assets of the estate, including the moneys collected from Chapman, after stated, and was filed for final settlement of the administration.
There is a second phase of the bill. It alleges a sale of the land by the executor, purchase by Chapman, payment of the purchase price in Confederate treasury notes, report by the executor to the- Probate Court of the payment of the purchase-money, order by the court that the executor make title, and title actually made to Chapman, who is in posses
We do not consider it necessary to decide this question, for the following, among other reasons : Thomas A. Morris, the testator, died in 1862, and his will took effect as of that date. By the first clause of his will, he bequeathed and devised that all his estate be sold to the highest bidder, and the proceeds be equally divided among his children, after the expenses and debts of his estate were settled up. This we judicially know was during the prevalence of the late civil war, when neither gold or silver, or United States money circulated or was to be obtained in Perry county, Alabama. We also know judicially that from that time to the downfall of the Confederacy in 1865, Confederate States treasury notes and their convertible equivalents were the only circulating medium we had. The authority to sell contained in the will, contemplated no postponement of the sale, and a majority of the legatees urged an immediate sale. Much the most valuable part of the property consisted of slaves. Under the circumstances, we think it was both the privilege and duty of the executor to sell; and he was justified in receiving in payment the only currency in the country, Confederate treasury notes. — See Ferguson v. Lowery, 54 Ala. 510; McRae v. McDonald, supra; Cumming v. Bradley, 57 Ala. 224. We do not mean to say that all the preceding circumstances were necessary to justify the executor in the collection of Confederate money, at the time it was received in this case. Our rulings are that when a personal representative, in good faith, received Confederate money in the course of administration, he did not thereby commit a devastavit, oí incur a greater liability than to account for the honest and faithful administration of the same.
Under these rules there is no pretense of claim against Chapman for unpaid purchase-money, or against the executor for selling and converting the property into Confederate money; for there is neither averment or proof of any acts of fraud, bad faith, or collusion, against any party to this record. See McRae v. McDonald, supra; Hutchinson v. Owen, at the present term. There being, then, no equity in that feature of the bill which seeks to fasten a liability on Chapman, all the averments in that connection will be treated as redun-.
Previous to the death of Thomas A. Morris, in 1862, Thos. W. Morris, his son, had died, leaving three infant children, of whom complainant is one. In 1868 the other two died, aged respectively 14 and 12. The present bill was filed by James Brainard Morris alone, and seeks to recover the entire one-eighth of the estate which fell to him and his brother and sister. Personal representatives of said two deceased children are not made parties to the suit, but the bill avers they died in infancy, leaving no debts. There is no proof, however, of this last averment, and it is denied in the answers. Children 12 and 14 years old, having no living father, can and generally do owe debts, if they have property. This averment is very material to complainant’s right to recover the interests of his deceased brother and sister.— Van Derveer v. Alston, 16 Ala. 494, 499; Miller v. Eastman, 11 Ala. 609, 614. Under the pleadings and proof in this record, the complainant can recover, at most, only the one-third interest of the eighth which would have fallen to his father, about $850.
It is contended for appellee that the executor’s attempt to make a final settlement of his administration in March, 1864, was a failure, for two reasons: first, because the guardian ad litem, appointed to represent the minors on the settlement, did not accept the appointment in writing. In Stahler v. Cook, September, 1877, we decided that in proceedings in the Probate Court, written acceptance of appointment as guardian ad litem is not necessary. It is enough if the record shows, as it does in this case, that he did accept and serve. Second, it is contended that no final decree was rendered in this cause, and therefore the present bill will lie, to compel the executor to make final settlement. Without considering the question, ivlien the final decree was written up, and the effect of delay therein, we feel bound to hold that the record fails to show a valid final settlement and decree, so far as the present complainant and his brother and sister are concerned. As to these interests it names no person as plaintiff. — Rhodes v. Turner, 21 Ala. 210; Watts v. Watts, 37 Ala. 543.
The present proceeding, then, must be treated as an application to recover the one-third interest of $2,550 from the executor, as executor, and his sureties. We have shown above that the executor is not responsible for having converted the property into Confederate money. If he is responsible at all, it is for the $850 found due complainant, and which was in Confederate money. It is contended, however, that he purchased two slaves, at the price of $1,890, and that
In March, 1864, the executor, as executor, had in his hands $850, Confederate currency, in trust for complainant. Complainant was a minor, in the State of Texas, and the executor could not reach him, if he had desired, or if it had been his duty to do so. It was his duty as executor to retain it, and the will had directed him to retain it. There is no averment or proof that he could have invested it with any profit. It perished in his hands by the failure of the revolution, before he could obtain access to the complainant. He, the executor, testifies--and he is uncontradicted — that he kept the identical money set apart for complainant and his brother and sister, until it became valueless in his hands; and that the identical money is now on file in the Probate Court of Perry county. This presents a strong case of faithful administration ; and the record fails to show one act of faithless or negligent conduct against the executor. He did what the will commanded, what the legatees to whom he had access desired, and he dealt with his own interests precisely as he did with those of the other legatees.
If this proceeding were against Mr. Morris as guardian, (which it is not,) there is nothing in the record to fasten a liability on him in that character. — See Davis v. Davis, 10 Ala. 299; Whitworth v. Oliver, 39 Ala. 286, 294-5.
The decree of the Chancellor is reversed, and a decree here rendered, dismissing the bill in the court below at the cost of the complainant.