Offutt v. Vance

42 Ala. 243 | Ala. | 1868

JUDGE, J.

On the 30th of May, 1882, Francis M. Gilmer, and J ames J. Gilmer, executors of the last will and testament of Peachy B. Gilmer, deceased, made a final settlement, in the probate court of Montgomery county, of their administration of the estate of their testator. On said settlement, the probate court decreed, amongst other things, that the said executors pay to James B. G. Vance, and Sarah E. Vance, the wards of appellee, the sum of twenty-nine thousand six hundred and fourteen dollars. The decree then proceeds as follows: “And it being proved to the court that S. W. Vance, the guardian in the State of Louisiana, of said infants, in which State both guardian and infants reside, has received from said executors the said sum of twenty-nine thousand six hundred and fourteen dollars, and has given them, as said guardian, his receipt for said sum of money, which receipt is produced and proved in court; it is ordered that no execution issue on said judgment and decree in favor of said infants, and that satisfaction thereof be entered on the minutes of the court.”

It further appears by the record of the proceeding on the settlement, that the share of the wards in the estate, was set apart to them in “notes, bonds and stocks,” among which were the two notes on Thomas Williams, described in the pleadings; that the receipt of the guardian, on which satisfaction of the decree was entered, is for the notes, bonds and stocks, which were thus set apart to his wards ; and that they were received in full payment of the decree.

§§ 1799 and 1800, of the Code, are as follows : “Any judgments or claims in favor of the estate, which are not collected at the time of final distribution, may be divided amongst the persons entitled, on final distribution, or if such division cannot be equitably made, may be sold as other personal property. The executor or administrator must assign such judgment or claim to the distributee, legatee, or purchaser, as the case may be; and such person is entitled to collect the same by suit or otherwise.”

We are not called upon to decide in the present case, whether the proceedings of the probate court were regular and without error, or otherwise, in entering a monied decree in favor of the wards, and in recording satisfaction thereof on the guardian receiving the amount of the decree in “notes, bonds, and stocks,” which had been set apart to his wards as their share of the estate. If the action of the court in this regard was irregular or erroneous, it cannot be made the subject of revision and correction, in a collateral proceeding. The final settlement remaining in full force, the wards of appellee are invested with the title to the notes of Williams, and may enforce their collection. Whether they were literally “assigned” by the executors or not, does not appear from the record, and is not here a material question.

So, also, the validity of the order of the probate court, transferring the estate of the wards to Louisiana, cannot be collaterally inquired into, Under that order as it stands, the appellee was entitled to institute this suit, the vendor’s lien having accompanied the transfer of the notes.

If the appellant paid the notes of Williams to the executors, after the final settlement, it was a payment in his own wrong ; but the allegation of the payment in his answer, is wholly unsustained by the proof.

The decree of the chancellor is affirmed, and the cause remanded, that the decree may be'carried into execution. Appellant must pay the costs of this court.