17 Ala. 119 | Ala. | 1849
Three points arise on the record before us: 1. Is the bill multifarious? 2. Has the complainant a right to sue, being at the time of lier appointment as administratrix an infant? 3. Whether the legacy given to her intestate by the will of Samuel Savage vested so as to eutitle her, as his administratrix, to recover it from the present personal representative of the testator’s estate? We will briefly examine these in the order in which they are staled, as well as some collateral questions as to the mode of taking the account.
1. It is insisted that the bill is multifarious because the complainant unites a claim against Benham, the administrator de bonis non., with one against George M. Savage, who was the executor of the estate: That Benham has no interest in the litigation between the complainant and the executor. The bill was filed by the complainant to recover the share to which her late husband was entitled under the will of his.father. To arrive at that share it is necessary to ascertain the residuum of the estate, after deducting the payments for the debts and the expenses and losses of the estate. George M. Savage was the executor and also one of the residuary legatees; as executor he took charge of the estate, and afterwards absconded, taking with him nine negroes and other property, amounting, as is alleged in the bill, to seven thousand dollars. It is further alleged that he has gone without the limits of this State — is insolvent, as are also all the securities upon his bond as executor, and that he has made no settlement of his executorship with the Orphans’ Court. It is therefore prayed that the share to which he might otherwise be entitled in the estate be appropriated by the court to make good his default. It will be seen from this statement that in order to effect a full settlement of the estate it was indispensable that an account should be taken with Savage, the executor, in order to ascertain the amount of his defalcation or waste, and to repair it so far as the share to which he is entitled under the will is sufficient to do so. We think therefore he was very properly made a party, both in his capacity as executor and legatee. It would be contrary to the plainest dictates of equity to permit him to share one seventh of the residuum, when at
2. By our statutes the Orphans’ Courts have full jurisdiction over the'subject of granting letters of administration, and of all testamentary and oilier matters pertaining to an Orphans’ Court, or court of probate. — Clay’s Dig. 300, § 21; 301, § 25. By the 20th sec. of the act of 1806, the widow or next of kin to the intestate, or some of them, are entitled to the administration, and nothing is said in the statute as to her age; hut we concede that although the act is silent, yet it would be improper for the Orphans’ Court to appoint her unless she had attained her majority, so as to execute a bond which she could not avoid. This, however, is not the question before us. Is such appointment, when made according to the forms which the law prescribes, void, and can it be so declared in this collateral mode of proceeding? We are clearly of opinion that her appointment at most was only voidable, and that having consented to the appointment and fully ratified it since she has come of age, by filing her bill and proceeding in the course of administration upon the effects of her deceased husband, she could not set up her infancy to avoid the grant of administration or her liability upon her bond. — Reeves’ Domestic Rel. 240; Richardson v. Boright, 9 Verm. Rep. 368; 11 Serg. & Rawle, 305; 7 Watts, 412; 5 Yerg. Rep. 61; 2 Term Rep. 426. As then her intestate’s estate has the security of a good bond, and she produces her letters of administration granted by a court of competent jurisdiction, is of full age and insists upon her rights as confered by said letters, it does not lie with the defendants to say she should-
3. We proceed next to notice the remaining question as to whether the legacy claimed by the bill was vested or contingent, and here we may remark, that we previously had occasion to examine this question, in the case of Goodman, Ex’r, v. Ben-ham, Adm’r, 16 Ala. 625, and then arrived at the conclusion that the legacy was vested. We held up the opinion, however, in that case, that the question might be re-argued. The point has been fully discussed in this case, and we see no reason to doubt the correctness of our first conclusion. The law is said to favor the vesting of estates, and in cases where the intention of the testator, to be gathered from the whole will, is doubtful, that construction should be adopted which is profitable to the devisee, not to his prejudice. — Bacon’s Abr., Wills, g.; 1 Jar-man on Wills, 726-’7. So when there is a doubt, vested rather than contingent remainders are favored. — 4 Pick. Rep. 198; 2 ib. 468; 21 ib. 312; 5 Mass. Rep. 535; 10 Bacon’s Abr. (Bouvier’s ed.) 540; 1 Roper on Leg. 389. So, also, courts do not favor intestacy as to the residue of an estate. — Lake v. Robinson, 2 Merrivale, 385. The rule which favors the vesting of legacies will prevail, unless a clear intention is shown on the will that it shall not vest until the happening of the contingency, and it is said “the court will not conjecture in favor of an intention against the general rule.” — Gaskell v. Harman, 11 Ves. 498; Farley v. Gilmer, 12 Ala. Rep. 141; Mart’s Ex’r v. McCullough, Adm’r, 6 Por. Rep. 507. These general rules can do but little more than aid us in arriving at the intention of the testator, for in all cases that intention, to be gathered from the whole will, must be, if lawful, the law for the court in giving effect to the will. We think it sufficiently appears from an examination and careful analysis of the whole will, that it was the intention of the testator to provide against intestacy in respect to
We might here close this opinion, but as in all probability the case may return unless the other questions raised are decided, we proceed briefly to state the law as applicable to them, and which will guide the chancellor and the register in the further proceedings to he had in the cause.
As to the legacy left to William F. T, Savage, if he was dead at the time of the death of the testator, express provision is made in the will that his portion, to be ascertained in the mode therein prescribed, shall be divided among the children and grand-chiidren of the testator, in the same manner as is expressed in respect of the other properly bequeathed them. It is plain then, that if he was dead when the will was made or when the testator died, the complainant’s intestate was entitled to his proportion of the share so bequeathed. This point was decided by us in the case of Goodman, Ex’r, v. Benham, Adm’r, above cited.
1. The fifth item of the will requires the executors to divide between the children who are married or are of full age the net proceeds of the crops to he realized by the executors, after de
2. As to the dealing between the executor and Dillahunty,
These authorities may suffice to show that the husband never having reduced the legacy into possession, the wife’s equity to a suitable settlement out of her share of the estate is not to be considered as affected by reason of his indebtedness to the executor.
Perhaps we have no need to go farther into the questions presented, as the principles above educed will be sufficient for the guidance and future disposition of the cause. ' If a balance remains after making a suitable settlement on the wife, it should not go to Dillahunty, but be appropriated in discharge pro tanto of his indebtedness to the estate.
Let the decree of the Chancery Court be reversed and the cause remanded, that a reference may be awarded, and a decree pronounced in accordance with the views here expressed.
Let the defendants pay the costs of this court.