53 Ala. 178 | Ala. | 1875
A court of equity has original jurisdiction to enforce the trusts of an administration — to compel the appropriation of the assets to the payment of debts, and when these are extinguished, to the satisfaction of legacies ; or in cases of intestacy, to apply them according to the statute of distributions. Of this jurisdiction it is not divested by the statutes conferring on courts of probate, cognizance of the settlement of the accounts of executors and administrators — of the payment of legacies, making distributions, and power to render final decrees, adjudicating and determ
The statute creating the courts of probate, modified to some extent this principle. It provided that courts of chancery, should on bill filed by either party, at any time within three years, correct any errors in law or fact, which may be shown to exist in any matter decided by said courts. If the error did not appear of record, it could not be corrected, except on allegation and proof that it occurred without fraud, accident or neglect on the part of the party complaining. Pamph. Acts 1849-50, p. 33, § 31. This provision was not carried into the Code, but was superseded by an enactment, declaring that “where any error of law, or fact, has occurred in the settlement of any estate of a decedent, to the injury of any party, without any fault or neglect on his part, such party may correct such error by bill in chancery, within two years after the final settlement thereof.” It. C. § 2274. The difference between the act of 1850, and the Code, is manifest. Under the former, if the error complained of appeared of record, the bill in equity for its correction was as much a matter of course, and of rig’ht, as an appeal or writ of error. It was only when the error depended on extrinsic evidence that the party complaining was bound to acquit himself of fault or neglect. The acquittal of fault or neglect, under the Code, is indispensable, whether the error complained of is apparent on the record, or is made to appear by evidence dehors the record. Unless the Code operates to bar any impeachment of a decree rendered in the court of probate, after the lapse of two years from its rendition, it does not affect or impair the general jurisdiction of a court of equity to,
If resort is had to the general jurisdiction of a court of equity, to impeach the justice of a judgment or decree, of a court of concurrent jurisdiction, or the judgments of a court of law, because of fraud in its rendition, or on facts available in opposition to the judgment or decree in the court rendering it, the party complaining must state with certainty and precision, every fact constituting the fraud, that his adversary may controvert or disprove them, if necessary; and must exclude every conclusion of fraud or negligence on his part. If relief is sought, not on allegations of fraud, but solely because of facts available in bar of the decree or judgment in the court rendering it, these facts must be stated with like certainty and precision, and it must be shown that the failure to make them available in bar of the decree or judgment, is unmixed with negligence on the part of the party complaining. French v. Garner, 7 Port. 549 : Duckworth v. Duckworth, 35 Ala. 70; Hair v. Lowe, 19 Ala. 224. Conscience, good faith, and reasonable diligence, must concur, or a court of equity is passive. A party having a complete remedy or defence, which he neglects to use and permits to be concluded by the judgment or decree of a court of competent jurisdiction, cannot reasonably ask a court of equity to cure his omission, and thereby encourage useless
Applying the principles stated to the case presented by the pleadings and proof, and the appellants were not entitled to relief. If it could be conceded the bill is sufficiently certain in its allegations — that it discloses error or fraud in the settlement had in the court of probate — it is clear all the matters complained of were cognizable in that court, and could there have been made available in bar of the decree rendered. The only excuse preferred for not making defense in that court, is the confidence reposed in the appellee, by the tenants for life and the remaindermen; and that the remainder-men (one of whom was wholly ignorant of his rights, until a short time before the filing of the bill), had no notice or knowledge of the settlement. The record of the settlement had in the court of probate, recites that the only notice thereof, required by law, was given in the mode prescribed. If this recital could in any aspect of the case be impeached, it stands now wholly uncontradicted, and to it, absolute verity must be accorded. Personal notice, by service of process requiring a party to appear, or informing him of the pendency of proceeding affecting his interests, is necessary to support only a few of the decrees of a court of probate, though such decrees operate as effectually in determining and divesting rights, as the judgments or decrees of the courts of largest jurisdiction, to the validity of which personal service of process is generally essential. The policy pervading the statutes regulating proceedings in that court, is to charge all having interests in the estates committed to its jurisdiction, with notice of its proceedings, from their inception by the grant of administration, to their conclusion by the final settlement of the executor and administrator. The whole theory of the organization of the court, is to advance a speedy settlement and distribution of estates — to avoid the delays incident to other courts, pursuing other remedies and modes of proceeding, in the form of adversary suits. In this court the proceedings are never adversary, until a party intervenes and initiates a contest. Watson v. May, 8 Ala. 177; Clemens v. Patterson, 38 Ala. 721. The statute expressly requires, where application for the probate of a will is made, that citation shall issue to, and be personally served on the heirs resident in the State. R. C. § 1951. If such notice is not given, the decree is not void, but voidable only on error or appeal. Blakey v. Blakey, 33 Ala. 611; Deslonde v. Darrington, 29 Ala. 92; Lovett v. Chisholm, 30 Ala. 88. The right of an heir becomes vested on the death of his an
Until 1843, there was not a statutory provision, which could even by implication be regarded, as requiring parties to be made to a final settlement of an administration in a court of probate. Mere notice by publication, that the account and vouchers had been filed, and that on a particular day the court would proceed to state, audit and allow them, was the only requisite. The notice was addressed to all parties concerned in adverse interest, without naming or describing them. Infants may have been the only parties in interest, and yet no statute required that a guardian ad litem should be appointed to represent them. It is not believed to have been the practice to appoint such guardian, and no instance can be found of a reversal of a decree of settlement, because of the failure to make such appointment, until after the act of 1843'. On the judge of the court was devolved the duty of examining and auditing the accounts, and reporting the same for allowance. Of the time at which the allowance was to be made, notice was given by advertisement. If at
The appellee on the filing his accounts and vouchers, for the final settlement now sought to be vacated, conformed to the direction of the statute, by stating in writing, under oath, the names, age, and residence of the legatees for life and in remainder. The truth of this statement is not controverted, but admitted. So far as he had authority, or any remedy by which to make them parties, he pursued it. The only notice, which the law permits, by publication was given. It fully appears, the immediate successor of the appellee in the administration, the administratrix de bonis non, had notice and participated in the settlement. If the statutes have any force — if all settlements had in a court of probate, are not to be treated as ex parte, the parties concerned in adverse interest in this administration, were parties to, and had notice of this settlement. The notice by publication, prescribed in the statutes regulating proceedings in the court of probate, has every obligatory element of the personal service of process, in the courts of common law, or courts of chancery. The constitution of these courts, the fundamental law of their organization, provides compulsory process, commanding a party
They knew that after the lapse of eighteen months from the grant of administration, the executor could make a final settlement, and surrender to the tenants for life the estate not specifically devised. Charged by law with this knowledge, and two of the complainants, Charles and Eliza Heirn, having it as a matter of fact, what prevented them from ascertaining and presenting to the court of probate, every fact, on which they now rely, to open and annul the final decree of that court ? They reposed confidence in the appellee, it is alleged ; but there is no evidence, that it was in any other degree, than such confidence as is usually extended from one person to another, in the ordinary transactions of life. The confidence, the trust, which when abused, will invoke the aid of a court of equity, is not shown to have existed, except so far as it may be deduced from the relation of executor and legatee in every case. Soon after the lapse of the life estate, they discover the facts on which this suit is founded. Within less than six months they commence suit. The tenants for life, whose testimony in reference to
It is, we think, certain that two of the complainants, Charles and Eliza Heirn, had knowledge of this settlement, distinct from, and independent of that which the law must impute from the decree of the court, and the proceedings on which it was founded. Prior to the settlement and preparatory to it, an administrator de bonis non was appointed, the appellee having resigned as executor. They became the sureties on the bond of the administratrix de bonis non. It is possible, but not probable, that they may have been ignorant of the fact of settlement. The reasonable conclusion is, that they knew the appointment and qualification of the administratrix de bonis non, was forthe purpose of the settlement. Having thus the actual knowledge of the settlement, which is so prominently insisted on in some of the authorities to which we have been referred, what excuse can be preferred for their failure to inquire into it, and avail themselves of the facts they now press to avoid it ? The executor had resigned, the administration was not complete, for a successor to him had been appointed, and he was seeking a final settlement which was to be a final discharge of his liability. These facts certainly were sufficient, if they had ordinary care for their interest to put them on inquiry. If they did not inquire, but acquiesed in the settlement, they can not now be heard to say, if error of law or fact occurred, that it was without their fault or neglect. They surely neglected to inquire, or to take any step to prevent such error from intervening. "Whether they base their right to relief on the statute, or on the general jurisdiction of a court of equity, their negligence is a bar. Allman v. Owen, 31 Ala. 167. If
Nor can it be admitted the complainant Cornelia, has, either by allegation or proof, acquitted herself of fault or neglect. The allegation is, “the said Cornelia did not know at that time, (the time of the settlement,) and until a short time before the filing of this bill, that she had any interest in said estate, or of the administration of the same by the defendant.” This is a simple, general averment of ignorance of her rights. It is not a negation of facts, or of notice or knowledge of facts, which would have put a man of ordinary prudence, and ought to have put her on inquiry as to her rights. It is not a denial of knowledge that the appellee was executor, administering the estate of the testator. It is not a denial of knowledge of her relation to the testator — of his residence and death — of the fact that he had an estate, which must by operation of law, descend to his heirs, or be distributed to his next of kin, if he died intestate, or devolve under his will if he died testate. It is not a denial of the fact that she bore a relation to him, which made her his next of kin, or if he died testate, a probable recipient of his bounty. Having knowledge of these facts, she was singularly supine, if she never made inquiry, and her supineness is negligence. An allegation not materially different from this, was declared by this court in Martin v. Br. Bank Decatur, 31 Ala. 122, wholly insufficient as a negation of a want of knowledge of facts, which ought to have put a party on inqiiiry, and would have charged him with knowledge of the facts, of which he preferred ignorance.
We prefer to rest the affirmance of the decree of the chancellor, on the proposition, that the settlement in the court of probate, is a bar to the relief sought by the bill. If errors intervened, in that settlement, the complainants have not shown that it was without fault or neglect on their part; that they did not in that court, avoid such errors. The power*, of the court were ample, and of them, the complainants could have had full benefit. A court of equity refusing to interpose in such case, proceeds upon the highest and most conservative public policy. A judgment or decree of a court of competent jurisdiction, must be, except under extraordinary circumstances, an end of litigation. Truth, justice, the peace of families, and the repose of society, demand this
It is due to the appellee, to say, the evidence fully vindicates him from all fraud, or intentional error, or from any dereliction of duty as executor. An error crept into his accounts, to which his attention was not called, nor its correction claimed, until the bill was filed. It could result in but a small balance against him, which he by his answer offered to pay, and would doubtless have paid without suit, on being informed of it.
The decree is affirmed.
