140 Ala. 469 | Ala. | 1903
Mary T. Noble, relict of Benjamin F. Noble, deceased, is-, the executrix of the last will of that decedent, and by the will she is vested with certain trusts for the individual benefit óf complainant and others in respect of property interests given them by the Avill. John S. Noble is a beneficiary under the will and a surviving partner of B. F. Noble & Son, which was a business firm composed of himself and Benjamin F. Noble. By the bill of complaint it is sought to have the administration of the estate removed from the probate to the chancery court; to have the same together with the' special trusts administered in the latter court and, as incidental to such administration, it is further sought to have John S. Noble account for what may be due the estate from him as surviving partner.
John S. Noble demurred to the whole bill, to so much of it “as seeks the accounting of the alleged partnership” and to that part which alleges he “collected assets of the estate for which he never accounted.” He also moved that the bill be dismissed as being without equity, and here assigns as erroneous the overruling of his demurrers and motion.
Apparently this litigation is in renewal of that had in the case of Noble v. Tait, reported in 119 Ala. 399, the subject matters and most of the questions involved in that case and in this being identical. We adhere to the opinion rendered in Noble v. Tait, supra, and accordingly hold that the bill is appropriate for bringing the administration of the estate and the special executorial trusts connected therewith within the jurisdiction of chancery, and that it is not open to the objections pleaded by the demurrer on the ground of multifariousness.
In further accordance with the opinion referred to, it must be held that John S. Noble, being a legatee of Benjamin S. Noble as well as his survivor in the partnership, is liable at the instance of complainant to an accounting as prayed in this bill, and to the end that funds justly belonging to the estate and received and kept by him, whether as surviving partner or in his individual capacity, may be made to enure to the benefit of the estate by decreeing that retention be had, on account thereof, from his share of the estate. The liabilities sought to be charged against the share of John S. Noble does not have the character of a “debt contracted with the decedent in his lifetime or with the executor” and, therefore, does not come within the terms of the statute (Code, § 239) which provides for setting off debts so contracted against the distributive share of the debtor. They may be available, however, under the general principles upheld in Nelson, Extr. v. Murfee, 69 Ala. 598, and which in Woerner’s American Law of Administrations, p. 1236, is stated thus: “The indebtedness of a legatee or dis-tributee constitutes assets of the estate which it is the executor’s or the administrator’s duty to collect for the benefit of creditors, legatees and distributees. Hence, such indebtedness may be deducted from any legacy or distributive share of the debtor.”
Though the alleged partnership is shown to have been dissolved in 1890 by the death of Benjamin F. Noble, the bill does not show when the partnership business was wound up so that the surviving partner as such could have been forced to. account to the executrix. This is in itself sufficient to justify the overruling of that ground of the demurer which assumes that “it appears from the bill that the statute of limitations of six years has barred all proceedings for the settlement of said alleged partnership.”
But apart from this consideration we hold that the mere efflux of time from the death of the testator, does
Affirmed
