Werborn v. Pinney, 76 Ala. 291

Werborn v. Pinney

76 Ala. 291 | Ala. | 1884

STONE, O. J.

— Werborn was executor of the will of Adolph M. Solomon, deceased, and uas brought to a final settlement of his administration, at the instance of Amanda M., the widow, who had intermarried with one Pinney. The settlement was had in the Probate Court. In filing his account for settlement, the executor had set forth, as the persons entitled to share in the estate, Mrs. Pinney, testator’s surviving wife, and Adolpha, his only child, an infant over fourteen years of age. A guardian ad litem was appointed to represent the interests of the infant, who filed exceptions to the account filed by the ex*294ecutor. On the motion of the executor, the Probate Court ruled that Adolpha had no interest in the settlement, revoked the order appointing a guardian ad litem, dismissed her as a party, and rejected the exceptions to the executor’s account, which had been filed for her. The settlement was then had on the executor’s account filed, and Mrs. Pinney’s exceptions thereto. A decree was rendered, that the executor pay to her a fraction over two hundred dollars, and that he surrender to her certain property of the estate, which remained in specie. Adolpha, the infant, had excepted to the action of the court, in disallowing her as a party; and Mrs. Pinney sought to raise certain questions for revision in this court, in which she complained that the Probate Court had ruled to her prejudice. An alleged misunderstanding caused delay in the preparation and execution of a bill of exceptions, taken in the interest of Mrs. Pinney, who appealed from the Probate Court to this court. When the case reached this court, Werborn, the appellee, moved to strike the bill of exceptions from the transcript, on the ground that it was not signed in time; and that motion prevailed. This case then came before us as an ordinary appeal from a decree of the Probate Court, rendered in an executor’s final settlement.

As a general rule, the Probate Court has jurisdiction of the settlements of executors and administrators. There are exceptions to the rule, but they rest on special circumstances. When there is no invocation of powers which the Probate Court is incompetent to exercise, its jurisdiction is plenary. After the bill of exceptions in this case was struck out, there was nothing to show the Probate Court had not jurisdiction of every element of the contention, or that there had been error in any of its rulings. We affirmed the ruling of the Probate Court. Pinney v. Werborn, 72 Ala. 58.

After the affirmance in this court, an execution was issued from the court below, for the enforcement of the affirmed decree. Werborn thereupon moved to quash the execution, upon the alleged ground that the Probate Court had no jurisdiction to render the decree in the first instance. He offered evidence dehors the record proper, to show the want of jurisdiction. Having failed to produce the evidence in the first, trial, it is probable the offer came too late. The execution pursued the decree, and the record, considered as truth, showed the court had jurisdiction of the subject-matter. The parties are concluded, for they are shown by the record to have been before the court.

We need not, however, decide this question. When the decree was affirmed in this court, the judgment of the lower court became thereby so merged in the judgment of this court, *295that that court could make no order, altering or modifying the terms of its rendering.— Wiswell v. Munroe, 4 Ala. 9, 19; Stevens v. Norris, 15 Ala. 79 ; Norris v. Cottrell, 20 Ala. 304; McArthur v. Dane, 61 Ala. 539.

Possibly Adolpha, the daughter; who has an interest in re.mainder, can, by a proper proceeding, prevent the personal property remaining in specie from going into the hands of her mother. — Mason v. Pate, 34 Ala. 379.

The decree of the Probate Court is affirmed.