21 Ala. 761 | Ala. | 1852
— The objection which is taken by tbe plaintiff in error, that tbe issue ascertaining tbe advancement was not made between tbe proper parties, cannot be sustained. It was competent for any of tbe other heirs of tbe intestate to raise tbe objection; and although it would be tbe better practice, whenever it is necessary to form an issue to ascertain whether an advancement has been made by tbe intestate, that tbe proceedings should be conducted in tbe name of tbe administrators as plaintiffs, and tbe party contesting tbe fact of tbe advancement as defendant, yet, if it appears from tbe record, that tbe question at issue was fairly presented, and correctly decided, without objection in tbe court below, tbe defendant, if tbe decision is against him, cannot complain that tbe other distributees were the plaintiffs, instead of the administrators. By not making the objection in tbe court below, be assented to tbe trial of tbe question in tbe shape in which it was presented; and after doing tbis, be will'not be permitted to raise tbe objection before an appellate tribunal.
We think also, that tbe court below decided correctly in relation to tbe advancement. Tbe evidence clearly shows, that the slave Lucy and her child were paid for with tbe money of tbe intestate, and that on two different occasions be asserted bis title to them, in tbe presence of tbe child to whom
In relation to the question of notice: The record recites, that, on the day and at the term appointed for the final settlement of the estate, the administrators appeared, and presented their accounts, which are shown to have been previously duly reported and filed, for settlement; and also, that the guardian of the minor heirs appeared, and claimed for them a distributive share. These recitals are conclusive, as to the fact of the appearance of the minor heirs by their guardian ; and as this legal appearance would dispense with the necessity of notice, the real question is, whether the minors who are interested in the distribution of an estate can properly be represented on its final settlement by their general guardian. We are not aware that this question is covered by any previous decision, and in the case of King v. Collins, 21 Ala., it is considered as one still open for adjudication. It is unnecessary to cite authorities to sustain the position, that, in general, the
It results from these views, that there is no error in the record, and the decree is affirmed.