4 Ala. 121 | Ala. | 1842
In the case of Teat v. Lee, [8 Porter, 507,) this Court held that Commissioners appointed by the Orphans’ Court to make division of property, had no power to ascertain the value of property brought into hotch pot, but that the value must be ascertained by the Judge of the County Court himself, or by a jury empannelled by him for that purpose. In this case the value of the property appears to have been ascertained by the Commissioners, by direction of the County Court. No other construction can be put upon the order of the County Court, as it is evident that the value of the property was not ascertained when the order was made, and the ascertainment of such value was a prerequisite to to the division.
A child having received from the parent an estate by way of advancement, may refuse to bring such advancement into hotchpot, but the result of such refusal must be that the child relinquishes all share or interest in the estate of his parent as a distributee of the estate. This results from the reason of the thing, and is the evident meaning of the 15th section of the act on this subject. [Aik. Dig. 155.]
The objection that it does not appear that the one-fifth part of the slaves was allotted to the widow cannot be sustained. The record shows that the lot drawn by the widow was rer turned into Court, received by it, and ordered to be recorded. If less than one-fifth part, as the order of the Court directed, was allotted to her, objection should have been made and the facts spread upon the record, to enable this Court to determine the fact.
When an executor or administrator desires to make final settlement, he should present his accounts to the Judge of the County Court, whose duty it is to ftud.il and state theni, and report them for allowance at a succeeding term of the Orphans’ Court, of which at least forty days notice must be given. The object of the law is, that those interested may have time and opportunity to examine the account and come prepared to contest ih
Nothing of this kind was done in this case, and the accounts were not produced until the day of final settlement. f7 Porter, 270.]
Nor does the record show that any of the distributees were present, or that the Minors had guardians to protect their interests.
No decree appears to have been rendered for the distributive share of the widow, or any cause assigned for jts omission.
The division and final settlement must therefore be reversed and the cause remanded for further proceedings.
