20 Ala. 662 | Ala. | 1852
The bill is filed by a creditor of Charles L. Roberts, on behalf of himself and other creditors, to obtain administration of the legal assets of the estate, and also to subject to the payment of the debts of the estate, certain real and personal property, which, it is alleged, have been fraudulently added to the trust property of the widow and children. The complainant is not a creditor with a lien ; but the bill shows a judgment against the intestate, an execution and return of “no property” during his life, and a report of insolvency by his administrator. The administrator of Roberts, who is also the trustee, and the widow and children, who are the cestuis que trust, are with, others, made defendants to the bill.
The first question presented in the argument is, .as to the
In tbe one case, a judgment binding tbe realty, or tbe issue and delivery to tbe officer of an execution binding tbe per-sonaljproperty, must be shown; and in tbe other, tbe prosecution of tbe debt to judgment, issue of execution and return of no property. Tbe application of these rules, however, belongs to tbe relation of debtor and creditor purely, and while this relation exists in tbe present case, it is found in connection with other circumstances, wbicb are of themselves sufficient to authorize tbe interposition of a Court of Cbancery. In other words, tbe creditor in tbe present case asserts bis right to tbe aid of that court, not merely because be is a creditor, but for tbe additional reason, that bis claim is connected with matters of administration wbicb render tbe interference of Cbancery indespensable. The equity of tbe complainant, therefore, depends upon considerations applicable to tbe jurisdiction of Cbancery in relation to administrations, rather than those wbicb apply to tbe simple relation of debt- or and creditor.
Upon this branch of Cbancery jurisdiction, while we incline to tbe opinion that it would be necessary to reduce to judgment a claim sounding in damages merely, it is certainly true that in England, for upwards of a century, creditors without a lien, without even having obtained a judgment, have maintained their bills against executors and administrators, for discovery and account of assets, and satisfaction of their debts. Joseph v. Mott, Pre. in Ch. 77; Davison v. The Earl of Oxford, 3 P. Williams 401; In the matter of Sir Charles Cox, 3 P. Williams, 341. In this State we do not find that
The principle to be extracted from the decisions to which we have referred is, that the jurisdiction of courts of equity in matters of administration, in relation to the enforcement of claims of creditors and the distribution of assets, is sustained upon considerations essentially distinct from those which influence such courts in affording assistance to creditors whose demands are not connected with administrations. In the one case the jurisdiction is original and primary, resting upon its general powers in relation to the settlement of estates ;in the other, it is ancillary, or in aid of the legal tribunals whose powers are found inadequate to the emergency.
A Court of Chancery having jurisdiction of the subject matter, it remains only, as to the question now under consideration, to inquire whether the facts disclosed by the bill, aré sufficient to authorize the withdrawal of the administration
In relation to the statute of non-claim: The bill alleges the presentation of the claims of the complainant within eighteen months after the grant of letters, and although the benefit of the statute is claimed by the defendants Leachman and Sarah Roberts, by way of plea, the answers do not positively deny the presentation, although the answer of the former avers that if such was the case it has escaped his recollection. Under these circumstances, proof of the fact by one witness is sufficient. Heartt v. Corning, 3 Paige 566. One witness
As to the weight of this evidence, we may remark, that the fact to be proved is not of a character that requires any high degree of proof to satisfy the mind. The witness swears positively to the admission of the administrator, and although be was evidently mistaken in the time when the conversation took place, an immaterial fact, it is highly improbable that be could have been so, as to the character or extent of the admissions themselves, which under the circumstances cannot be regarded as loose or casual. The testimony of this witness is corroborated, by the payments which are admitted to have been made by the administrator to the complainant, both before and after the termination of the eighteen months, as well as by bis return on oath after that period, of the judgments as existing debts against the estate. The presumption arising from the payment is, that the person paying has made the payment correctly — that be has inquired into, and is satisfied with the title of the receiver; and the fact of the payment is therefore evidence of the right of the receiver. James v. Biou, 2 Sim. & Stu. 600; 1 E. C. Ch. R. 608. It was the duty of the administrator not to have paid any debt which the statute of non-claim bad barred. It was bis duty, in the report of insolvency not to have included any such claim as an existing debt against the estate, and the presumption is, that in these respects be has discharged bis duty. We regard the evidence as to the due presentation of the claims as sufficient.
We come now to tbe real merits of tbe case. Tbe bill
Neither can the complainant in relation to these slaves derive any assistance from the second section of the statute of frauds, in relation to non-registered loans. Clay’s Dig. 254, § 2. The law upon the clause referred to of that statute, as settled by this court, is, that if the owner resumes the possession of the property before the creditor enforces his lien upon it, it cannot afterwards be made subject to the debts of the borrower. Maull v. Hays, 12 Ala. 199; McCoy v. Odom, 20 Ala. A lien lost or destroyed is the same as if it had never existed, (Otey v. Moore, 17 Ala. 280;) and the executor of the lender having taken possession of the slaves before the creditor had enforced his lien, it is the same in legal effect as if the lender himself had resumed the possession of the property; and the creditor having failed to fasten his claim upon the property, during the existence of his lien, cannot afterwards assert it against the same property when in a different condition. Even if the slaves did not go into the possession of the executor, their appropriation and possession under the will of Woodliff Beville, would be sufficient to prevent the creditor from subjecting the property, after the loss or destruction of his lien. McCoy v. Odom, supra. As to these slaves, therefore, the demand of the complainant cannot be sustained.
In relation to the eighty acres of land which was purchased from Foster, the answers admit the purchase, but deny that
As regards the improvements which were made on the lot purchased on tbe 14th July, 1841, the answer insists that they amounted but to five hundred and ninety dollars, and that these improvements were also paid for out of tbe trust funds. Tbe evidence however shows very clearly, that they could not have cost less than one thousand dollars, and that of the amount expended upon them the greater portion was paid out of the individual funds of the intestate, and the purchase of the lot having been made from tbe same source, and no portion of the trust funds traced into the lands or the improvements, no lien can result in favor of tbe trust estate, although the estate of tbe trustee will be responsible for the
The correctness of the conclusions to which we have arrived upon the evidence, may be tested by a condensed view of the transactions to which we have referred. The total amount expended by Roberts for the eighty acre tract, the lot on Province street, and all the improvements, with the slaves Moses, Betsy and Perry, according to the evidence, amounted to near seven thousand dollars, and it is also proved that, during these expenditures, he received but a little over eleven hundred dollars from the trust funds. Nothing whatever is shown to have been realized from the "trust slaves; no loans contracted, or money raised in anticipation of, or on the credit of the trust funds; and indeed no attempt whatever made to account for the enormous disproportion between the amount shown, to have been invested, and the actual amount received. The conclusion therefore, that these investments were made with the individual funds of the intestate, is irresistible; and upon the deficiency of the legal assets of his estate, they must be applied to the demands of his creditors, as also the hire, rents and profits arising therefrom, to be computed from the service of the bill. Backhouse v. Jetts, 1 Brock. 500.
In taking an account of what is due to the complainant, a material question arises, as to whether his demand is to be credited with the claim upon William Inge, which the evidence shows has been wholly lost. The receipt for this claim is given by the attorneys for the complainant, and states upon its face that it is to be credited on the judgments of the complainants against Roberts. No objection is raised as to the authority of the agents; but it is insisted that this credit should not be allowed, for the reason that it was not intended by the parties to have been received as an absolute payment, and has not and could not have been collected at any time since its receipt on account of the insolvency of Inge. By the terms of the receipt it was received as an absolute payment, and although instruments of this character are open to explanation, we do not regard the evidence of the only witness who has been examined upon this point, as sufficient to repel the presumption created by the language of the receipt.
Another question which will also arise in taking the account is, as to the credit claimed on the judgment of the complainant from the hire of the slaves Esther and Martha, from the 14th July, 1842, the time of the sale, to the rendition of the judgment for their conversion at the suit of the trustee. These slaves were trust property; the sale of them by Bob-erts was without authority, and a note given for the purchase money could, after the recovery against the purchaser, have been successfully defended. So also, the agreement to credit the hire upon the individual debt of Boberts was without consideration, and it would be contrary to equity to enforce it in favor of one who has no claim to the allowance, the purchaser having been charged, as in this - case it appears from the evidence, with damages from the date of the transfer.
In relation to the claim which is advanced for the hire of the trust slaves, the general rule laid down by the counsel for the defendant in error is unquestionably the correct one. The father is' bound to provide for the maintenance and support of his children, and it is not allowed, as a matter of course, out of their own property. 2 Story’s Eq. § 1854 a; 1 Rop. Leg. 758. It is, however, equally true, that if the instrument creating the trust gives to the father this benefit, he is entitled to the advantage of it. Thompson v. Griffin, 1 Craig & Phil. 317. The question, therefore, here becomes one of intention, and construction upon the will of Woodliff BeviUe; and by the terms of that instrument it is provided, “ that the slaves that will be coming to Sarah Boberts, are to be placed in the hands of a trustee, to manage the same for her own use and the use of her children, and that no person is to deprive the said Sarah and her children of the use of the same or any part thereofand in another part of the same instrument the testator adds, “ All the property which I have given to my daughters is for their own use, and not to be taken
It is also urged, that by the statute of this State, Olay’s Dig-173, § 7, the widow is entitled to the dwelling house in which her husband resided at the time of his death, free from rent, until her dower is assigned. This position is correct, (Inge v. Murphy, 14 Ala. 289; Shelton v. Carrol, 16 Ala. 148,) and in taking the account of the rents and profits of the real estate, the profits of the dwelling and premises occupied by Boberts at the time of his death must not be computed.
This disposes of all the points which legitimately arise in the case. The decree in the court below must be reversed, the costs in this court to be paid by the administrator, Leach-man, and allowed as a claim against the estate of his intestate. The decree to be rendered should refer it to the master: First, To take and state an account of what may be due to the complainant upon his demands as stated in the bill, and such other creditors of the estate as shall come before the master upon reasonable notice, prove their demands, and contribute to the expenses of this suit their just proportion, to be settled by the master;
Secondly, To take and state an account of the assets in the hands of Leachman, as administrator, which must, under the direction of the master, be applied to the debts and other charges against the estate, in the due course of administration according to the laws of this State;
Further, That the west half of the east half of the northwest quarter of section eleven, township twenty-one, and range two east, as divided by a line running north and south through said east half of said north-west quarter, and the other lands described in the bill, and the slaves Moses, Betsey and
In ease of a deficiency of assets in the hands of the said Leachman, as administrator, after a due administration of the same, and paying the charges and expenses thereof, to pay the debts proved on the account before the master, such deficiency must be raised from the hire, rents and profits of the slaves and real estate in the hands of the receiver, and from the sale of said slaves and real estate, as also the sale of the other lot in Eutaw as described in the bill; such sale to be made under the direction of the master.
If the hire, rents and profits in the hands of the receiver, and the sale of said slaves and real estate are not sufficient to pay said debts, the master must take and state an account with the said Leachman, of the hire of said slaves, and rents and profits of said real estate from the service of the bill upon him, not computing the rents, &c., of the premises in the possession of said Roberts at the time of his death, and that said Leachman be decreed to pay the amount due on such account to the demand of the complainant and the other debts against the estate proven before the master.