Savage v. Benham

11 Ala. 49 | Ala. | 1847

GOLDTHWAITE, J.

1. We shall first consider the objection taken to Jhe review of this settlement on the ground that a writ of error will not lie until the estate is finally settled. Annual, as distinguished from final settlements, seem to be recognized by much of the legislation previous to the enactment of ’43, under which this settlement was made. Thus, guardians as well as executors and administrators, allowed by the orphans’ court to keep the estates of their testator or intestate together for a period beyond the scope of an ordinary administration, were required to state their accounts annually. [Digest, 267, § 3; ib. 198, and <§> 30, 31, 37.] Another general statute provides that all trustees, whether appointed by will or by deed, shall annually state their accounts to the circuit court of the proper county. [Digest, 582, <§> 6.] Another provides that the documents and evidence of all settlements with executors, guardians and administrators, shall be carefully preserved, and shall not be impeached except for fraud in obtaining the same. [Digest, 304, § 37.] Another invests the orphans’ court with authority to displace any executor or administrator who has embezzled or misapplied all or any part of the decedent’s estate. [Digest, 221, § 4.] From these enactments it is evident the orphans’ court was intended to be invested with the most plenary jurisdiction over the several subjects they relate to, and that the power of removal could not well be exercised without an inquiry into the state of the party’s accounts. They show further the general scope of legislation is to place all trustees, of whatever description, under a strict accountability, and chiefly at annual periods. Until the enactment which we shall presently advert to the annual settlements of executors, administrators and guardians, had no other effect than to furnish the means of arriving at the true state of the final account, and the preservation of evidence in favor of and against the guardian, and what is said by this court in Willis v. Willis, 9 Ala. Rep. 330; Cunningham v. Pool, ib. 615; and Powell v. Powell, 10 ib., is spoken of accounts stated or allowed previous to that enactment. By it the mode of proceeding is described when it shall be necessary for an executor, administrator or guardian to make either an annual or final settlement of his accounts, and the 'decree upon it when made is to have the force and effect of a judgment at law. We are entirely satisfied it covers a case like this, and that without any other than the general legislation updn the subject, that the orphans’ court has the jurisdiction to require executors, and administrators with the will annexed, to exhibit annual accounts whenever by the terms of the will the administration will necessarily be protracted beyond the ordinary period. It follows, that an annual settlement being within the terms of the act referred to, it may be examined in this court by writ of error. It may admit of question, and therefore we state it as a quere, whether annual settlements under this act may not be surcharged at the final settlement by those then interested.

2. With respect to the other objection, we think it cannot prevail. It appears, or rather we will assume, that the necessary publication was made. As no other than the party contesting appeared in the court below to contest the accounts of the administrator, and as no judgment was rendered in favor of others, she is the only proper party before this court, in the actual condition of the record. [Harrison v. Harrison, 9 Ala. Rep. 470; Watson v. May, 8 ib. 177.]

3. This brings us to a consideration of the merits of the proceedings in the court below, which may be briefly disposed of. Considering the administrator as succeeding to all the powers and duties cast by the will on the executors therein named, he was notwithstanding a mere trustee, and as such required to show affirmatively that every charge made by him for debts contracted by himself in that capacity, was for articles which actually came to the use' of the estate or for services to it. Thus much the law requires him to show, no matter what was the discretion with which he was invested, and without the influence of this rule, there-would be no check whatever on his charges. In the very nature of things, there can be no exception to this rule, as in it rests the notion that trustees are accountable for the mode in which the trust is performed. [Alexander v. Alexander, 8 Ala. Rep. 797.]

4. Beyond this, so far as his acts were consistent with good faith, we think it was not incumbent on him to show the articles were necessary or proper, or that the price paid or agreed to be paid was reasonable. Under the clause in the' will, it is certain if he succeeded to the trust as such,'that his discretion was of the most extended nature, and in our judgment no court would be warranted in charging him for its exercise, unless the unreasonableness of his contracts was such1 as to induce a well guarded distrust of .their bona jides.

5. In regard to the several items of charge for notes and accounts contracted by Savage, one of the executors, and paid by the administrator, we can only say the proof at the hearing did not warrant their allowance. Ordinarily the personal representative of an estate cannot bind its assets by contracts, nor is one administrator responsible for the acts of another. It is, however, held in England, that where a testator directs his trade to be continued after his death, the estate may be charged in the event of the bankruptcy of the executor, Avhen the general assets of the estate are directed to be used in the trade, or to the extent of the particular fund directed to be used. [Ex parte Garland, 10 Vesey, 110.] To what extent the same or similar rules are applicable in this State, we shall decline at present to decide, as it is only necessary to determine here that the assets of the estate are not chargeable until the insolvency of the personal representative is made to appear. Whether they are so in that event may possibly depend on the circumstance of his being a creditor of the estate.

6. In relation to the small charge for which a constable’s receipt was produced, it seems to fall within the category of other claims attempted to be established by evidence which might be fabricated at pleasure. Doubtless the recovery by any one of a sum of money against the estate by action, would warrant the executor or administrator in paying it, but on contestation of the fact of payment, that as well as the existence of the debt should be proved by competent testimony.

This consideration of the cause enables us to decide the several questions presented. The several items of charge by the administrator for moneys paid or debts contracted by himself should have been sustained by evidence showing those debts were contracted for articles or services which came to or were rendered for the benefit .of the estate. The items on account of debts created by the executor, Savage, could only be sustained by showing a state of facts which in equity would subject the assets of the estate to the several creditors; and the. charge for the sum paid to the constable should have been supported by proof of the existence of a judgment binding the estate as well as its payment. On all these points the proof in the court below seems to be defective. Judgments reversed, and the causes remanded.