53 Ala. 615 | Ala. | 1875
The bill by appellees, who are minor children, and only next of kin of William H. Lewis, deceased, who died intestate, in June, 1861, a resident citizen of the city of Mobile. On the 10th day of July, 1861, the court of probate of the county of Mobile appointed Joel A. Roberts administrator in chief of said intestate; and he qualified, and gave bond, with the appellant and Joana
The bill alleges, that Roberts failed to account for assets he had received, and appropriated to his own use; and negligence in the collection of the debts due the intestate. It seeks to avoid the satisfaction of the decree rendered against Roberts, in favor of O’Grady, the administrator de bonis non, because the only satisfaction was with Confederate treasury-
The bill seems to have been intended to present the right of the complainants to relief, in several different aspects. It has some of the elements of a bill, addressed to the general jurisdiction of a court of equity, to reopen the final settlement of an administration,had in the court of probate, because of fraud, and to surcharge and falsify the accounts of the administrator on which the settlement was based. It' has also elements of a bill to correct errors occurring in the settlement, addressed to the special jurisdiction conferred by the statute (R. C. §§ 2274-5). It may have been intended as a bill to compel payment from a debtor, who has fraudulently and collusively obtained from an administrator satisfaction of his debt, or the evidences of it, without an actual, bona fide payment. Or, it may have been intended to pursue trust funds, of which the appellant has possessed himself by a fraudulent collusion with the personal representative. If, in either of these aspects, the evidence would authorize relief, and the bill is now deficient in allegation, it would be capable of amendment in the court of chancery, so as to correspond with the proof. (R. C. § 3356). Having reached the conclusion, that in neither of the aspects in which the case may be considered, the evidence warrants a decree against the appellant, we do not propose a critical analysis of the bill, nor to affirm or deny that such several and distinct matters, or grounds of l’elief, can properly be blended in one suit.
The devastavit of Roberts the administrator in chief, against which relief is now sought, is supposed to consist of his fraudulent omission to account for several thousand dollars in gold, deposited with him, or with a bank of which he was an officer, by the intestate, and of money received by him after his qualification as administrator, with which he failed to charge himself; and of negligence in the collection of the debts due the intestate, from which loss ensued; and in the loans made to appellant, and to Douglass. It cannot be doubted, that of this devastavit, if it was committed, the court of probate had full and complete cognizance; and that the relief now sought could have obtained in that court, when the settlement of the administration was made, and
Such is the force and effect of the decree, or a coui’t of equity would assume to revise the action of the court of probate, or wholly to disregard it. A court of equity has not appellate or revisory jurisdiction over the decrees of a court of probate, or of any court of concurrent, jurisdiction, or of the judgments of a court of law rendered on matters, of which the court of equity could originally have taken cognizance. “Were a court of equity,” said C. J. Marshall, “in a case of concurrent jurisdiction, to try a cause already tried at law, without the addition of any equitable circumstance to give jurisdiction, it "would act as an appellate court, to affirm or reverse a judgment already rendered on the same circumstances by a competent tribunal. This is not the province of a court of chancery.” Smith v. McIver, 9 Wheat. 535. The conservative principle, that matters which have received a judicial determination cannot be called again into
The bill does not aver, and the averment could not have been made consistently with the evidence, that all the facts in reference to the devastavit, now imputed to Roberts, could not have been discovered by reasonable dilgence, or were in truth unknown, when the settlement ay as made in the court of px’obate. Nor is any .reason or excuse averred, nor could any have been averred and proved, for not presenting then for adjudication these facts, if they were not in fact adjudicated. It is not an answer to say, that Roberts fraudulently
In the case of Smith v. McIver, supra, relief was sought against a judgment at law, not because of fraud in its rendition, but because the title on which the judgment was founded was infected by fraud. The argument addressed to the court was, that a court of equity had jurisdiction because of the fraud. In that case, as in this, the facts alleged had precisely the same operation in a court of law, as in a court of equity, and were as capable of proof in the one court as in the other. Relief was refused, the court saying: “Admitting, then, the concurrent jurisdiction of the courts of equity and law in matters of fraud, we think the cause must be decided by the tribunal which first obtains possession of it, and that each court must respect the judgment or decree of the other. A question decided at law, cannot be reviewed in a court of equity, without the suggestion of some equitable circumstance, of which the party could not avail himself at law.” There must be an end to litigation ; and without offending principles of public policy, endangering the order and peace of society, and deranging the whole structure of our judicial system, a court of equity cannot intervene against the decree or judgment of a court of competent jurisdiction, because of facts known, or capable of discovery by reasonable inqury, at the time of its rendition. Fraudulent practices or concealments may be resorted to by an unscrupulous suitor; witnesses may be corrupted, or evidence suppressed, and an unjust, unconscientious judgment wrested from the court; these must have been unknown, and
There can be no fraudulent concealment imputable to Roberts, unless it is in reference to the alleged deposit of gold, and the moneys he is charged with having received from the sales of merchandise. As to these, the evidence does not sustain the imputation. The facts were as well known to the widow of the intestate, to her brother, to the administrator de bonis non, and to the guardian ad litem of the appellees, when the settlement was made in the court of probate, as when this bill was filed. The widow, the mother, and her brother, the uncle of the appellees, are the material witnesses now, to establish the facts in reference to these moneys, and to fasten a liability for them on the appellant, the surety of Roberts. The widow was personally present at the settlement, and was represented by counsel. She was entitled to share in the distribution of the assets, and her interest was to compel a full accounting from Roberts. Manifestly, she was not under his influence, or bearing to him any kindly feelings. According to her evidence, she had not only invited but pressed Roberts’ resignation, because he did not account for the supposed deposit of gold. There was no difficulty in obtaining from her brother the evidence now given by him. Roberts was in life, to answer, admitting or denying his liability. The court was competent to adjudge, and to enforce its adjudication. Litigation would never be quieted, and the decrees of the court of probate, rendered in the exercise of the most important branch of its jurisdiction, would be valueless, if a court of equity could reopen this settlement and decree, and enter on a new adjudication of the facts they involve. The decree of a court of probate, rendered on the final settlement of an administration, its jurisdiction having attached, and being complete, is of equal dignity, and as final and conclusive, as the judgment of a court of law, or the decree of a court of chancery, not only of facts actually litigated and decided, but of all facts necessarily involved in its rendition. Watson v. Hutto, 27 Ala. 515; Watt v. Watt, 37 Ala. 547; Modawell v. Holmes, 40 Ala. 404.
The appellees were, when the settlement was made and the decree rendered, and are now, minors, to whom, as a general rule, laches is not imputable; and it may be insisted they should not be barred from reopening the decree, and renewing the litigation it involves, though the decree would operate to bar an adult. The conclusiveness of judgments
A judgment or decree, rendered against an infant represented by a guardian ad litem, is binding, and can be impeached only upon grounds which would be available if he were an adult. Freeman on Judgments, §§ 151, 513; Tyler on Infancy, 172; Bustard, v. Gates, 4 Dana, 429; Beningfield v. Reid, 8 B. Mon. 105; Preston v. Dunn, 25 Ala. 507. His rights and interests are as subject to the jurisdiction of the courts, as the rights and interests of an adult, and must, of necessity, be the matter of frequent litigation. Because of his incapacity,the courts observe a vigilance and jealousy in adjudicating against him, not extended to suitors who are sui juris. A guardian ad litem is appointed by the court, who, in the presence of the court, makes full defense, and has not capacity to impair the defense, by any act, admission, or omission. The protective care of the court, and the fidelity of the guardian, is a security against an unjust-judg*
Independent of these considerations, the administrator de bonis non was before the court of probate, and the decree rendered was necessarily in his favor. He alone had a right to recover of Roberts, not only the unadministered assets, but compensation for any devastavit committed by him. The common law extended the authority of an administrator de bonis non, as the name imports, to the unadministered assets alone; to such as remained in specie, unaltered or unconverted by his predecessor. 1 Brick. Dig. 919, § 81; Beall v. New Mexico, 16 Wall. 535. His title was that of the intestate, and he could not, of consequence, recover of the administrator in chief for his delinquencies or devastavits, or compel a settlement of his administration. 1 Brick. Dig. 919, § 82; Beall v. New Mexico, supra; 2 Redf. Ex. 91. This principle of the common law was productive of delays and embarrassments in administrations, and was of special inconvenience to creditors. It was changed by statute, in 1846, authorizing the rendition of decrees on the final settlement of the administrator in chief, in favor of the administrator de bonis non, for the balance due from him on such settlement, and rendering the administrator de bonis non liable to account for moneys received on such decrees, in the same manner as if they had been received in the regular course of administration. Pamph. Acts, 1845-6, p. 14. The construction this statute received was, that it not only conferred on the administrator de bonis non authority, but that it imposed the duty, of compelling a settlement of the administration of his predecessor, and the collection not only of the assets unadministered, but an accounting for such as may have been wasted or converted. Simmons v. Price, 18 Ala. 405; Whitworth v. Oliver, 39 Ala. 286. The
The purpose of these enactments was to relieve creditors and next of kin from the multiplicity of suits to which they were subject at common law, in being compelled to pursue the administrator in chief, for assets he may have wasted, and the administrator de bonis non for such as remained in specie, and from the doubt and uncertainty which must often have perplexed them, as to the proper party against whom to proceed. The construction given them must serve this purpose. When, as in the case now before us, the period for the presentment of claims has not expired, and the time arrived when the distributees are entitled to distribution, the administrator de bonis non must be i-egarded as having the exclusive right to call his predecessor to a settlement, and to recover of him for any waste or conversion of the assets, of which he may have been guilty. The title, authority and duty of the administrator de bonis non, in such ease, in respect to the liability of his predecessor, is precisely that he has in reference to the dioses in action of his intestate. Such is the construction similar statutes have received in other States. Drunkle v. Sherwood, 9 Watts, 489; Carter v. Freeman, 7 Barr. 315; Stair v. York Nat. Bank, 55 Penn. 364; Shackelford v. Runyan, 7 Humph. 141. Clothed with this title, authority and duty, the administrator de bonis non was before the court of probate when the settlement was made and the decree rendered. In his favor only could the decree have been rendered. It could not, without peril to the rights of creditors, and of the resigned administrator., have been rendered in favor of the distributees. Between the administrator de bonis non and the distributees there was a legal privity, which renders the settlement and decree binding on the latter, in the absence of fraud and collusion between the administrator de bonis non, and the administrator in chief. Redmond v. Coffin, 2 Dev. Eq. 443; Mason v. Peters, 1 Munf. 437; Sanders v. Godley, 23 Ala. 473; S. C. 36 Ala. 55. It may be, if the distributees were seeking to charge the administrator de bonis non with negligence in not obtaining a larger decree against Roberts, that the decree would be only prima facie evidence against them. But they are now pursuing the surety of Roberts, who stands affected by the decree as Roberts was affected. He may insist, as Roberts could have insisted, that having once litigated the matter with a proper party, the representative of the distrib
The result we reach is, that so far as the bill seeks relief, because of a devastavit imputed to Roberts, the settlement and decree in the court of probate is a positive bar. It is but just to add, that the evidence has not impressed us 'with the .belief that such devastavit was committed. Suspicions may be generated; but it is just to presume, if Roberts were in life, confronting his accusers, the information he could give would neutralize and remove them.
It remains to consider the right to relief in the other aspects it may have been intended to present the case. The only material aspect is the manner in which the decree of the court of probate was satisfied. It was in fact satisfied Avith Confederate treasury notes, and the debts of third persons, assets in the Hands of Roberts for administration, with Avhich he was charged on the settlement. The decree was rendered in favor of O’Grady, the administrator de bonis non; payment of it Avas made to him, and he gave to Roberts a receipt, acknowledging full satisfaction. An executor or administrator is regarded, so far as duty and responsibility may be involved, as a mere trustee; as to third persons, they are treated as absolute owners of the personal assets, if there be no fraudulent concert with them. 1 Story’s Eq. § 579; Dickinson v. Lochyer, 4 Vesey, 42. At common law, the legal- title, coupled with the absolute power to alien and dispose of the entire personal assets, vested in him. If he aliened or disposed of them, and there was no collusion between him and the person to Avhom he transferred, the creditors, or next of kin, could not pursue them. 2 Redf. Ex’rs 212; 1 Lomax Ex’rs, 367-74; 1 Story’s Eq. § 579; Whale v. Booth, 4 D. & E. 625; Field v. Schieflin, 7 Johns. Ch. 150. The statutes of this State have deprived an executor or administrator of the power to dispose of visible, tangible personal property, the subject of sale, otherwise than at sale under an order of the court of probate; and, with one or two exceptions, the sale must be at public outcry. 1 Brick. Dig- §§'266, 274-75-76-77. In other respects, his title and pOAver of disposition remain as at common law. He has the full legal title to the choses in action of the deceased, and is charged'with 'the duty of collecting and reducing them to possession. He may transfer, release, compound, or discharge them, as fully as if he Avas the absolute owner, subto his answer to creditors and distribu
We have been referred to the several decisions of this court, that an attorney, or other agent for the collection of a debt, has not authority to accept in payment anything but gold and silver, and that if he does, it is a satisfaction only at the option of the client, or principal, to whom the debt is due. West, Oliver & Co. v. Ball & Crommelin, 12 Ala. 345; Chapman v. Cowles, 41 Ala. 105. These authorities rest on the clear ground, that an attorney, or other mere agent for collection, has only authority to receive money in payment of the debt, unless special instructions are given him. He is in no sense an owner of the debt, and is without any power of disposition. An executor, administrator, or other trustee, clothed with the legal title, to which the power of disposition is incident, is not in any sense an agent, nor confined in power as is an agent. It is his province to collect the choses in action; to reduce them to possession; and he may do whatever his discretion dictates, as fully as if he was clothed with the legal and equitable title, subject only to his liability to the cestui que trusts, there being no collusion between him and the person with whom he deals. The decree of the court of probate was extinguished by the payment to O’Grady; and if the appellees have any cause of complaint, because of the payment, it is against him, and not against Roberts, or the appellant as his surety. It is difficult to conceive of a decision that would be fraught with more unmitigated evils, more productive of litigation, confusion, and injustice, than that cestui que trust can successfully impeach and annul every payment made to a trustee, in other money than gold and silver, and hold the debtor to another payment in such moneys as they may elect to receive. No principle of law or equity authorizes it.
The only remaining aspect in which the case has been pressed is, that the loan made by Roberts to appellant was without authority of law, and a devastavit, in which the appellant participated, and thereby possessed himself of the assets of the intestate, for which he is liable to account. From this liability, it is insisted, he is not discharged, because of his payment to Roberts, made after his resignation.
In no point of view, in which the case has been presented, can the decree against the appellant be supported. In refusing the appellees relief, in the matters presented by their assignment of errors, there was no error. The error lies only in the decree against the appellant. On the cross appeal prosecuted by the appellees, the decree must be affirmed. The decree against appellant must be reversed, and a decree-here rendered dismissing the bill, at the costs of the next friend of the appellees, in this court, and in the court of chancery.