93 Ala. 447 | Ala. | 1890
— -Appellant, as administrator de bonis non with the will annexed of John Sampey, brings trover against appellee for the conversion of a larg-e number of cattle, several hundred, which belonged to the decedent at the time of his death. Defendant claims title by purchase from A. D. Sampey, the duly appointed and qualified executor of the will of John
The facts as to the settlement and decree are as follows: A. D. Sampey, as executor, filed in the Probate Court, October 24, 1887, his accoupt and vouchers for a final settlement of his administration of the estate. A day was set to hear and determine the same, of which notice was given to all persons interested as required by law. A guardian ad litem for the minor heirs, and an administrator ad, litem, were appointed, and objections filed to the account. On the day set for the hearing, the court proceeded with the trial, adjourning from day to day üntil November 30, on which day there was an adjournment until December 5,1887. On the last mentioned day, A. D. Sampey, the executor, having died during the pending of the settlement, it was continued to February 7, 1888. On that day, the administrator of A. D. Sampey appeared, and moved the court to proceed and complete the settlement. Plaintiff, who in meantime had been appointed administrator de bonis_ non of the testator, also appeared, and on his motion the estate of the executor was charged with the purchase-money oí the cattle received from defendant, and a decree rendered in favor of plaintiff, as administrator de bonis non, against the administrator of the executor, for the balance found due, amounting to more than twelve thousand dollars, which included the money paid by defendant for the cattle.
If the settlement and decree be valid, they estop plaintiff from questioning the validity of the order of sale and the sale. Having,’ with knowledge of the facts, treated the proceeds of the sale as assets of the estate, caused them to be charged against the estate of the executor, and having received all the benefit which could haVe accrued from a regular valid sale, he will not be permitted to treat the sale as void, thereby receiving double compensation for the cattle. — Bell v. Craig, 52 Ala. 215.
Plaintiff, however, insists that the settlement apd decree are
Upon the death of the executor, his personal representative is required to make final settlement of his administration. The administrator de bonis non of the original testator must, be made a party, if one be appointed; and the court, after stating the account, must render a decree in his favor, unless the estate can be finally closed. — Code 1876, §§ 2537, 2538, 2539, 2595. The executor having filed his account and vouchers in his life-time, the court acquired jurisdiction of the subject-matter of the settlement, and by notice to the persons interested, and the appearance of the administrator of the executor, and the administrator de bonis non of the original testator, jurisdiction of the parties. The executor having died pending the settlement, the court had authority to appoint an
When the suit is to recover personal property, or for its conversion, unlike the case of land, the title to which can pass •only by writing, the estoppel is effectual at law.
Affirmed.