Petty v. Wafford, 11 Ala. 143

Petty v. Wafford

11 Ala. 143 | Ala. | 1847

GOLDTHWAITE, J.

1. The errors assigned in this cause are so numerous as to make it inconvenient to examine each in detail, but such of them as question the regularity of the mode by which the administrator was cited to appear, may be disposed of with the remark that they do not affect the proceedings in the least degree. Any one interested in the settlement of an estate is entitled to cite the administrator to make distribution, after the lapse of eighteen months from the grant of administration, and the administrator may either contest the right of the party thus to cite him, or he may proceed to settle the estate by citing such others os he wishes to conclude by the settlement. [Harrison v. Harrison, 9 Ala. Rep. 470.] In this instance the administrator, instead of contesting the right of Wafford to cite him, appeared and submitted to proceed, and in doing so waived any irregularities which might have been urged against their proceeding in the cause.

2. Of a kindred nature are all the objections urged to the final decree, on the score that distribution is decreed to improper persons, assuming to have a derivative title to the distributable assets. It is true the several parties, whether claiming in their own right or as the assignees of others, having similar rights, do not propound their interests, but the answer *146to all this is, that the administrator was present, and did not require them to do so. He cannot now be permitted to assert there is error in this particular. [McRae v. Pegues, 4 Ala. Rep. 158; Graham v. Abercrombie, 8 Ib. 552.]

3. There is error, however, in the mode in which judgment is given, in the names of the husbands only, when the right of distribution arose in right of their respective wives. This applies to the two Waffords and Holley, whose wives should have been joined in the judgment, as the respective rights would survive in the event of the death of the husband. Whether this error would be sufficient to produce a reversal, as was the case under, similar circumstances, in Crenshaw v. Hardy, 3 Ala. Rep. 653, or would be matter of amendment, as is intimated in Parks v. Stonum, 8 Ala. Rep. 755, we will not now undertake to determine, for if the latter only, there is nothing to amend by, as the name of the wife of John Wafford is not disclosed in the record.

The consequence is, there must be a reversal of the judgment, so far as it ascertains the debt in favor of the husbands, and remanded, that the proper judgments joining the wives may be entered. Of course the errors do not go to the matters of settlement.

4. There is another error, not covered however by the assignments, but which will be developed as soon as the proper entry is made. John Wafford, in his own right, as as-signee of Thomas Petty, is probably entitled to a judgment, as well as himself and wife. The same remark will apply to Andrew Wafford, who is entitled to judgment in his own right as the assignee of Brewer and wife. It would be impossible to correct the first of these errors, even if the others were amendable.

Reversed and remanded.