Portis v. Creagh

| Ala. | Jan 15, 1837

GOLDTHWAITE, J.

— It is apparent, that this record presents some striking irregularities, in relation to the statement of the names of the contesting parties — the several interests of those claiming a right to contest the accounts of the executors; and, it is much to be regretted, that a Court, possessing so extensive a jurisdiction, and of such direct and pressing importance to the community, as the Orphans’ Court of the several Counties, should be so little governed, by any settled rules of practice and proceedings.

In the present case, it should have been distinctly shewn, at whose instance this settlement was required to be made — what executors appeared before the Court — who claimed to be interested in the will, and in what shares or proportions — and which, if any, were the actors against the executors. It would be prudent and correct in all cases, where the County Court assumes jurrisdiction of any cause, of a testamentary character, to cause all its suitors to propound their allegations and interests, in writing — so that an appellate tribunal might, see, at a glance, who are the suitors, before the Court below; and in what manner the action of the Court is had on their respective claims and rights. If this was done, much litigation, expense and vexation, would be saved to ail persons concerned.

Although the conclusion to which this Court has been forced, by the state of the record in this case, is one which would relieve them from the consideration of the merits of this cause ; yet, as the case may undergo the further action of the Courts, they will proceed to express their opinion on the same.

The third, fourth and fifth assignments of error, ah though seeking; to reverse the particular judgments thereby complained of, involve the general inquiry, if the County Court, in the case presented, by the record, had jurisdiction to render any decree, distributing the estate of the testator, and to award execution, in favor of those claiming under the will.

The judge of the County Court seems to have entertained the opinion, that he had jurisdiction, as well to award- distribution to the several children, as to proceed to the settlement of the accounts of the executors. Now, many cases may, and in fact do exist, in which he would have the right to pass on the accounts, and yet not to make distribution ; and there may, no doubt, be some cases, where a distribution might be made under a will. The act of eighteen hundred and thirty,^* would seem to authorise such a conclusion.

A reference to the terms of the will of the testator, in this case, must satisfy every one, that it confers o,n the widow and executors, important duties and confidential trusts—that it vests with them, implicit confidence and great discretionary powers the estate is to be managed by the wife—the ne-groes divided, as she directs—lands and slaves to be given to one — slaves and money to another, when, in a certain event, others may be cut off, in the expressive language of the testator, “very short.” It can not be, that it was ever intended that such trusts as these should be overturned, and the estate distributed as if the father had made no will.

The Court are unanimously of opinion, that the County Court has no jurisdiction to proceed to a distribution, in this cau,se ; and would have affirmed the judgment of tile Circuit Court, reversing the proceedings of the County Court, if irregularities had not intervened, which would render this course improper.

The County Court rendered a judgment against the executors of the will of Ira Portis.—There were then, before that Court, Mary Gordon, executrix, G.W. Creagh and Robert Lee, executors; and the effect of the judgment there rendered, is a joint one,, against all three.—Creagh had a right to sue out as writ of error in the name of all—even without their consent; and could not take a "writ of error, in his own name, or if so done, it would give the Court no jurisdiction; and the writ of error would be dismissed. Such is the settled practice of this Court, re-cognised by numerous decisions.-- Caller vs Brittain^* Eastland vs Jones et al^†—Adams vs Robinson^‡— Swift vs Hill.^§

And, the Court is bound to dismiss a cause improperly brought, on its own mere motion, as it can have jurisdiction alone by writ of error.—Jamison vs Colburn.^¶

The Circuit Court had, therefore, no jurisdiction to proceed and render any judgment of affirmance, or reversal; but should have dismissed the writ of error.

This Court, therefore,, reverses , the judgment of the Circuit Court; and, proceeding to render such judgment as that Court should have rendered, directs that the writ of error to the County Court be quashed, for the non-joinder of the other parties to the judgment of the County Court.

In the case of Goodwin vs Creagh, depending on the same facts, -a like judgment is rendered.

* Aik. Dig. 252

* Minór’sl£ 27.

† ib. 275.

‡ ib. 285.

§ 1 Porter’s Rep. 277.

¶ TlStewavt and Porter' 253,andca-' ses there cited.