42 Ala. 225 | Ala. | 1868
If William J. Ward died intestate, or if the probate of an instrument as his will in Texas was void, or if there was ho admission of the same to probate in Alabama, the administration cum testamento annexo of the appellee, would not .therefore be void. The intestacy of a decedent, upon whose estate an administration, with the will annexed, was granted, would render such administration revocable, not void, if the court had jurisdiction of the grant of administration. — Broughton v. Bradley, 34 Ala. 694 ; Jennings v. Moses, 38 Ala. 202; Ex parte Maxwell, 37 Ala. 362 ; Watson v. Collins, ib. 587. In this case, it appears that William J. Ward died, leaving assets in Henry county. The probate court, therefore, had jurisdiction to grant administration upon the estate, and its action, even if erroneous, in qualifying 'the administration as cum testamento annexo, would not be void.- — Revised Code,
This was a proceeding for partial distribution by one of several distributees instituted under § 2105 (1778), Revised Code. In such a proceeding, it is not indispensable that the applicant should make any other party except the administrator. — Harrison v. Harrison, 9 Ala. 470 ; Sankey v. Elsberry, 10 Ala. 455; Graham v. Abercrombie, 8 Ala. 552. These cases define the proper practice in reference to the making those persons parties, whom the protection of the administrator may require to be bound by the decree. The proceeding is obviously neither in reference to the parties, nor in its nature adapted to the settlement of the accounts of the administrator. Its object is not to ascertain the extent of liability of the administrator, but to obtain distribution of. assets on hand for division.' In the. case of Harrison v. Harrison, supra, the court said : It would seem that all assets which existed in specie, or which had been previously reduced to money, were distributable ; and then intimates that the distribution should be confined to such assets as are usually the subject of sale. This last remark is made in reference to the distribution of slaves, and confined to chattels, it is probably correct. We entertain no doubt, however, that a distribution can be had under § 2105 Revised Code, of chattels in specie or of money, into which the chattels or choses in action of the estate may have been converted. The court cannot, under that section, however, render a decree for a distributive share of any sum or sums of money, for which the administrator may have become liable by negligence or misconduct.
In this case, no decree is rendered or seems to have been sought, for distribution of chattels in specie. The decree is purely for money, and its regularity depends upon the question, whether the administrator was chargeable as for money received by him to such an extent beyond the necessities of the estate for debts and expenses of administra
The administrator was chargable, as for cash on hand, with the amount of purchases made by him, and by him and another jointly. — Childress v. Childress, 3 Ala. 752 Purdom v. Tipton, 5 Ala. 914; McLane v. Spence, 6 Ala. 894; Duffee v. Buchanan, 8 Ala. 28. The debt of Oates and the administrator, due 7th January, 1862, for the purchase of real estate, was $8,138. The debt of the administrator for personal property purchased by him, due 26th November, 1861, was $11,600. From these two sums and the interest thereon, the petitioner was entitled to distribution. The decree exceeds a distributive share of that amount, and it is therefore too large. The bill of exceptions shows that the amount of collected funds was not more than sufficient to pay the costs and expenses of administration.
We do not think that upon the facts before us, the probate judge ought to have extended his monetary decree of distribution further than the- purchases by the administrator singly, and jointly with another.
It is stated in the bill of exceptions, that the administrator offered to prove the payment of $3,000 on the debt of $8,138 If such sum was lawfully paid and accepted by a. person to whom payment could lawfully be made, it discharged pro tanto the debt, and would lessen the fund for distribution in the administrator’s hands. Such a payment might, be made to a creditor or distributee of the estate. Whether such payment was made we cannot determine, from the facts before us. We think it prudent not to render a decree, but remand the cause, in order that the question of the payment alleged may be investigated.
The administrator is primafacie on final settlement, chargeable with the amount of the sale bill. — Stewart v. Stewart, 31 Ala. 207. But in this case, the inquiry cannot be had, whether he is chargeable on account of not collecting the debts for the purchase of property.
Reversed and remanded.