Parks v. Stonum

8 Ala. 752 | Ala. | 1845

GOLDTHWAITE, J.

The circumstance that the judgment for the distributive share of Mrs. Crittenden, was rendered in favor of the husband, in right of his wife, is not an error of which he will be heard to complain, as it is a matter which results to his benefit, if it has really any effect whatever, and because it was induced by his own action. It is possible the executor might complain of this as an irregular judgment, as was the case in Blackwell v. Vastbinder, 6 Ala. Rep. 218, but even if the complaint was by him, the error would be considered as a clerical misprision, and corrected so as to render it in favor of husband and wife.

2. It is also urged as a reason for reversal, that the settlement was made against infants, and that no guardian ad litem was appointed to protect their interests. This would be an error, if the infants had appeared previous to the decree of final settlement, and for the purpose of contesting it, (Taylor v. Reese, 4 Ala. Rep. 121,) but the record recites that no one appeared to contest the account reported for allowance, and the consequence is, that it cannot now be set aside, if the proceedings of publication and auditing have been in conformity with the statute. The judgment rendered in favor of the distributees seems to have been pronounced after the final settlement, and was entirely within the jurisdiction of the Court, if the executor was cited, or assented to the judgment. See Graham v. Abercrombie, at this term.

3. It is said however, that the proceedings preparatory to the final settlement, are not in accordance with the statute, and previous decisions of this Court, inasmuch as the account was not examined and stated for allowance by the Judge of the County Court. The act which governs these proceedings, is that to be found in Aikin’s Dig. 183, § 27, and provides that the Judge of the County Court, after examining and auditing the accounts presented by the executor, &c. and causing them to be properly stated, « shall report the same for allowance to the next term of the Orphans Court,” the executor, &c. giving at least forty days notice of his intention of having such account presented to the said Court for allowance at such term. In Horn v. Grayson, 7 Porter, 270, we say, "If an executor, &c. wishes to settle his accounts, the law makes it his duty to present his vouchers to the Judge of the County Court, who is to hear, examine and state them, and report them for allowance. The object of the law is manifest. The account is to be stated — that all persons interested in it may examine it, and prepare, if necessary to contest it.” Again, in Douthitt v. Douthitt, 1 Ala. Rep. 594, we say, “ the Judge should have caused the account of the administrator, so far as it seems to be properly vouched to be stated at length and in form, that the true condition of the estate might|be seen at one view. This being done, the account would be open to exception, in the same manner that the report of a Master in Chancery is; hence the publication should give notice of the time when the Judge of the County Court would report the account for allowance. And upon publication being duly made, and no exception taken or allowed, the account as stated should be allowed.” In the present case, the record does not state that the Judge examined and audited the accounts, in the precise terms of the act, but the exhibits and accounts were ordered to be received and spread upon the minutes of the Court and reported for allowance at a particular day, more than forty days after-wards. We think this must be considered as equivalent to stating that the accounts were examined and audited, for otherwise there is no reason, either for the order to place the account on the minutes or to report it for allowance.

Our conclusion on this point is, that the record shows substantially a compliance with the statute, and therefore there is no error in this particular.

4. It is further objected, that the allowance of this account was irregular, because the notice prescribed by law was not given. The order for publication was made on the 3d September, and directed to be published for six weeks in -the Mobile Advertiser. The settlement was to be had on the 17th of October. Conceding that it would take more than a day for the advertisement to pass from Conecuh to Mobile, this circumstance will not affect the order, as even then more than forty days notice might be given, and all that could be required under the order was to publish it as soon after the Court as might be.

5. With respect to the accounts supposed to be allowed on the 11th June, 1839, it may be said, that even if thei’e was a manifest error in this, we do not see how it can be re-examined after a valid final settlement. But the effect of that account seems to be entirely misconceived; it is not an attempt to charge the estate, but is a return by the adminstrator of certain assets belonging to it, which have come to his hands, and its allowance or dis-allowance could produce no conclusive effect upon the final settlement of the estate.

On a review of the whole transcript, we can perceive no error which injuriously affects the parties now complaining, and therefore the judgment is affirmed.