20 Ala. 777 | Ala. | 1852
Lead Opinion
The act of 1812, (Clay’s Dig. 196, § 23), gives the right, to any one entitled to the distribution of an intestate’s estate, to proceed against the administrator, to compel distribution, at any time after eighteen months from the grant of letters. Another section of the same act confers
The cases of Graham v. Abercrombie, 8 Ala. 552, and Petty v. Wafford, 11 ib. 143, decide, simply, that tbe assignee of an integral share of an estate may proceed in tbe Orphans’ Court in bis own name, to obtain distribution; but we do not understand that any of tbe decisions have gone to tbe length of bolding, that different parties may be made by assignment of an interest in tbe estate, at partial settlements; or that a distributive share might, by assignment, be split into different portions, and each one having an interest be allowed to pro
It follows, from these views, that tbe Circuit Court erred, in reversing tbe judgment of tbe Orphans’ Court; and judgment must be rendered here, reversing tbe judgment of tbe Circuit Court, and affirming that of tbe Orphans’ Court.
Dissenting Opinion
Tbe record presents two questions for tbe consideration of tbe court; 1st, .Has tbe defendant in error any interest in tbe estate of John Loveless, deceased ? and, 2d, Is bis interest of such a character, that, under our statutes, it can be propounded in, and adjudged by tbe Orphans’ Court?
In the case last cited, which was an action of ejectment by the purchaser at sheriff’s sale, against the defendant in execution, to recover his undivided portion in the lands sold, of which the defendant in execution, and the other joint tenants, were in possession, the court would not permit the other joint tenants to become defendants, lest the action of the purchaser might be defeated; but they allowed him to recover, upon the strength of his legal title, acquired by his purchase, and, afterwards, to hold as joint tenant with the others. All the-cases concur in treating the title of such a ¡Durchaser as a perfect legal title, and in substituting him to all the legal rights, to which the joint tenant, or tenant in common, was entitled in the land thus sold.
In the case of Graham v. Abercrombie, 8 Ala. Rep. 552, this court held, that “the interest of a legatee in an unsettled estate is the subject of assignment; and if one is made, it divests the interest of the distributee, so that no proceedings can be had by his representatives against the administrator; his assignee is thereby vested with all his rights, and they may be asserted by him in his own name.” This decision is so well sustained by the reasoning of Mr. Justice Goldthwaite, who delivered the opinion of the court, and the authorities to which he refers, that I regard it impregnable; and I must confess my inability to discover any difference between the rights of one who derives his interest in an undistributed estate through the voluuntary assignment of the distributee,
It seems to be thought, however, that because the administrator, by virtue of our statute, may rent lands, and, in certain contingencies, sell them, that, therefore, the right of the heir or devisee does not vest, until it is ascertained whether the real estate will be needed for the payment of debts. This conclusion is by no means a necessary one from the premises. The rights of the heir or devisee to the lands descended or devised, remain as they were before the passage of these acts. There is nothing in them to prevent the legal estate from vesting in him, on the death of the ancestor or testator; but the rights and powers given to the administrator by statute, are only so many incumbrances on his title, and both he, and a purchaser of his interest, take the title, subject to the legal call of the executor or administrator, should it be needed for the payment of debts, or for distribution. He may pass the title immediately on the death of the ancestor, and as he has a legal interest which he can convey, that interest must, of necessity, be subject to salé on execution for the payment of his debts. 16 Ohio, 271; 1 Barb. 75.
The power of the administrator to sell for the purpose of paying debts, is one conferred on him by the statute, for the protection of the rights and interests of creditors, who, by the policy of our law, are always preferred to the heir; and consequently, it cannot be affected by the act of heir or de-visee, or by any assignment he can make; or, indeed, by any right derived from him, whether it accrue to the party asserting it by the act of the heir himself, or by the act of the law. Until the trust created by the statute in favor of creditors, of which the administrator or executor by statute is made trustee, is fully discharged, no act of the heir, or title derived through him, will be allowed to operate to defeat his power to sell the realty to pay the debts of the ancestor. This proposition, I apprehend, will scarcely be disputed.
The same statute which confers on the personal representative the power to sell real estate for the purpose of paying debts, gives to him similar power for the purpose of making
But it is said, that in the case of Graham v. Abercrombie the question arose on a regular settlement of the administrator’s accounts, and not under the act which authorizes legatees and others to- seek partial distribution, after eighteen months -have elapsed from the grant of letters of administration. It is difficult to, perceive how this can affect the question of jurisdiction in the Orphans’ Court. The persons who are entitled to seek distribution in the two cases, are, according to the language of our statutes, the same. In both statutes the language employed to describe them is identical, and I think it beyond question, that the purchaser of a devisee’s interest, at sheriff’s sale, is a “person entitled to distribution” in the testator’s estate; and it makes no difference at what period of the administration he seeks it, provided the devisee himself would be entitled to the remedy at such period. In short, such purchaser is substituted to all the rights and remedies to which the devisee, whose interest he has bought, would himself have been entitled, had no sale taken place.
That he could, when it was ascertained that it was not necessary for the administrator to make sale of the lands for the payment of debts, or for distribution, compel partition of the real estate in any form of action which the law allows to the devisee, will scarcely be seriously doubted. What, then, is to hinder him from seeking his distributive portion of the purchase money, when the lands have been sold by the ad
This, however, does not appear by the record of this case. It is no where shown that the defendant in error was made a party to the application of the administrators for power to sell the lands. But I do not conceive that there are no other means by which the devisees, or those claiming under them, could be estopped from setting up their title against the purchaser at the sale made by. the administrator. Another, equally as effectual, exists here. The defendant in error, by filing his petition in this case, setting forth his title to the lands ; the sale by the administrator; the price for which it was sold; the value of the rents; and praying distribution of the money arising from such sale and rents, waives, by this record, every objection he could take to any irregularity which existed to his prejudice-fin the proceedings by which it was brought about, and assents to the title of the purchaser, in a manner fully as effectual in law, as he could have done, by being made a party to the proceedings for the sale, or by his deed duly executed for that purpose. He is estopped by the record in this case from ever setting up his title against the purchaser at the administrator’s sale. Bean v. Welch, 17 Ala. Rep. 770.
The power of the administrators to sell the lands for purposes of equal distribution among the devisees, is as full and ample, as it is to make sale of them for the purpose of paying debts, and the proceedings to bring about a sale are the same in both cases. Clay’s -Digest. When the sale is made, the effect of it is, to divest the title of the devisees, and cast it on
Tbe proceedings in this case were commenced under our statute, (Olay’s Dig. 196 §§ 23 and 24) by which it is enacted, that “ any person entitled to distribution of an intestate’s estate may, at any time after tbe expiration of eighteen months from tbe granting of letters of administration, petition tbe Orphans’ Court, setting forth bis claim; whereupon it shall be tbe duty of said court, to grant a rule on tbe administrator, administratrix or administrators, (as tbe case may be,) to make distribution agreeably to law; but no administrator, administratrix, or administrators, shall be compelled to make distribution at any time, until bond and security be given by tbe person entitled to distribution, to refund a due proportion of any debts or demands which may afterwards appear against tbe intestate, and costs attendant on tbe recovery of such debts.” The twenty-fourth section extends tbe benefits of tbe twenty-third to legatees and devisees.
It has been shown that the Orphans’ Court erred, in'repudiating tbe petition of tbe defendant in error, for tbe reasons alleged in tbe answer of tbe administrators with tbe will annexed, and those set forth in its own decree of dismissal. Yet, it-is equally clear, to my mind, that tbe opposite decree of tbe Circuit Court, when its terms are examined in reference to tbe legislative enactments above cited, cannot be sustained.
Tbe decree of tbe Circuit Court is in these words: “It is therefore ordered and decreed, that tbe said administrators, James Smith and William Loveless, pay to tbe said Isaac P. Hall tbe interest of Daniel and John T. Loveless, arising from tbe proceeds of tbe sale of tbe said lands, amounting to eigbty-tbreo dollars, for which let execution issue.” This decree is absolute in its terms, and no where extends to tbe administrators that protection which tbe law throws around them, at tbe time it allows distribution before tbe estate is
Tbe requirement of this act is very similar to tbe provision made by law for tbe protection of non-resident defendants in chancery, who have not submitted to tbe jurisdiction of that court; and this court has constantly regarded tbe failure of tbe Chancellor, to require tbe execution of tbe bond provided for in that case, as an error, so fatal that tbe decree would be reversed, notwithstanding it was proper in all other respects. Rowland et al. v. Day, 17 Ala. Rep. 681.
For another reason, also, I think tbe decree of the Circuit Court cannot be sustained. Tbe record from tbe Orphans’ Court does not pretend to set out all tbe proof which was before that court, in relation to tbe amount of money in tbe bands of tbe administrators, arising from tbe sale and rents of tbe lands devised, after tbe defendant in error became interested in them; nor, indeed, does it embody, in any form, so as to constitute them a part of tbe record, any facts whatever, as having been proved or admitted before it, which estabbsbed tbe sum for which tbe defendant in error was entitled to a decree. There is no bill of exceptions in tbe record of tbe Orphans’ Court, embodying tbe evidence there given; there is no recital of proof in tbe decree of that court, by which tbe Circuit Court could be advised of tbe state of facts necessary to be ascertained before a final decree could be understandingly rendered. Tbe Circuit Court, being thus
The decree of the Circuit Court should, in my opinion, be reversed, and the cause remanded to that court, with instructions for it to reverse the decree of the Orphans’ Court, and remand the cause to the Probate Court of Tallapoosa county, to be there proceeded in according to the principles laid down in this opinion.