124 Ala. 153 | Ala. | 1899
— The original bill was filed in this case, on the 31st August, 1892, by Henry D. Jacobs, as administrator de bonis non of Simon Jacobs, against Andrew J. McDonald, as administrator of the estate of James IT. Moore deceased, who was the administrator in chief of said Simon Jacobs deceased, and against Albert G. Henry as surety on the bond of said Moore in his administration on said Jacobs’ estate, the object of the bill being, to require McDonald, as administrator of Moore, to settle Moore’s administration on said Jacobs’ estate, and for a decree against him as such administrator and against said Henry, as surety on Moore’s bond, for any balance that may be found to have been due and owing by said Moore on his said administration at the time of his death. Said Henry D. Jacobs was the original complainant in this case, but in a collateral paper found in the transcript, it appears that prior to the 29th May, 1894, said Henry D. Jacobs was removed from the administration and O. D. Street, the appellant, was appointed in his place. When and for what reason Jacobs Avas removed, and Street appointed, Ave have been unable to ascertain. , .
The proceedings, therefore, in the probate court of Marshall county, by and between complainant and McDonald as the administrator of Moore, for the final settlement of Moore’s administration on Jacobs’ estate, are not evidence against Moore’s surety, Henry. He Avas not a party to these proceedings, Avas in no Avay bound by them, and as .to him, they were res inter alios acta. — Martin v. Ellerbee, supra.
The chancellor in his opinion- said as to the staleness of demand, relied on by defendants to defeat the suit: “On account of the great lapse of time since Moore’s administration and partial settlement of the Jacobs estate, and OAving to the fact that he and both his sureties are dead, and that it does not affirmatively appear from the record that there is a living Avitness who is conversant with the transactions complained of, and Avho could aid in stating the account, it seems to the court that it Avould be unfair and unjust to put Henry’s executors to an ac
In the case cited, George Holmes qualified as executor of Henry Holmes in 1867, with josiah Morris and Wm. C. Ray as sureties on his bond. He made a partial settlement of the estate in the probate court in 1875, when it was ascertained he had in his hands a balance of over $66,000. It did not appear that any subsequent, or other settlement had been made in the probate court. It was shown that he paid several of the pecuniary legacies. Besides George, Mrs. Holmes .only knew whether the former had settled with her, or to what extent he had failed to do so, and she had died in 1885. George, who knew all the facts, died in 1889, shortly before the filing of the bill; and Mrs. Alexander, who, if is presumed knew -whether the executor had settled with her, died in 1890, a few months before the bill was filed. Josiah Morris, one of the sureties, died after the bill was filed. The object of tlie bill was to have an accounting and settlement by said sureties (the executor having died) of George Holmes’ administration of the estate of the testator, both in respect to the direct interests of the complainants threin, and also in respect to the legacies of Anna Holmes, to whose rights they had succeeded. There were a demurrer, pleas and answers by respondents, testimony was taken, and the cause was submitted for final decree on the evidence and on the motion to dismiss for want of equity. On the hearing in the lower court, the bill was dismissed. McClellan, J., expressing the opinion of this’ court on appeal, said: “The demand made by the bill for an accounting and settlement is not barred by any statute of limitations. Nor has it passed under the ban of the doctrine of prescription in consequence of the lapse of twenty years, for it was not twenty years from the date of the partial settlement in the probate court to the time of bill filed. Nor, indeed, has the mere delay in bringing forward the demand, in and of itself, been sufficient to render it a stale demand. But, in our opinion, the delay, the circumstances attending
The circumstances of that case, and the principles above announced which are so manifestly equitable, are precisely applicable to this case, and compel an affirmance of the decree below,
Affirmed.