Whorton v. Moragne, 59 Ala. 641

Whorton v. Moragne

59 Ala. 641 | Ala. | 1877

BBICKELL, C. J.—

A court of equity will not, at the instance of an administrator or executor, arrest proceedings commenced in a Court of Probate for a final settlement of an administration, unless some specific fact or circumstance is shown, which renders the limited powers of that court, inadequate to a full and complete execution and settlement of the trusts of the administration.—Horton v. Mosely, 17 Ala. 749; Moore v. Lesseur, 33 Ala. 237; McNeil v. McNeil, 36 Ala. 109; Park v. Park, ib. 132. If trusts created by the will, are to be executed; or if there are complicated matters of account, and a discovery is necessary; or if the affairs of the testator or intestate, are so much involved, that he can not safely administer without the aid of a court of equity, it is competent for him to institute a suit bringing all parties in interest before the court, and procure its direc-tions.—1 Story’s Eq. § 544; McNeil v. McNeil, supra; Gould v. Hayes, 19 Ala. 438.

2. The chancellor dismissed the bill for want of equity, before the cause was in a condition for a hearing on the merits, and in the absence of necessary parties, if the court should take jurisdiction of the administration. It is improper therefore for this court, on the present appeal, to decide any other question than the equity of the bill; no other having been submitted to, and passed upon by the chancellor.—Sellers v. Sellers, 35 Ala. 235.

The will of the testator recites that he had made advancements to several of his children, who are mentioned by name, of the value of two thousand dollars each, ánd to another, of the value of eighteen hundred dollars, and then proceeds: “Now, I will and desire that my wife Elizabeth pay to each of my other children,” naming them, “ the said amount of two thousand dollars each, as they become of age or marry, and to the heirs of Mary Moragne two hundred dollars to make them all equal. And I further will and bequeath my property remaining after the demise of my wife Elizabeth, of all kinds and description to be equally divided between my said children, Benjamin B., James M., Bichard Pinkney, Martin 'Van Burén, Louisa, Catherine, the heirs of Mary Moragne, and Elizabeth, share and share, equal and alike.” The wife of the testator, the appellant one of his -sons, and a son-in-law, are appointed executrix and executors. Mary Moragne is the child of the testator, dying in Ms life, to whom he had advanced eighteen hundred dollars. *646The first question of doubt or difficulty, in the construction of the will, which the bill suggests, is as to the quantity and quality of the interest taken by the testator’s widow, and in reference to this, the advice and direction of the court is sought. There is no averment however, that a controversy exists as to this question; or of the quantity and quality of' interest which is claimed by the personal representative of the wife, or by her heirs or next of kin, if a claim is preferred. Nor is such personal representative, if there be one, or the heirs or next of kin, made parties to the bill, so that the court could properly adjudicate the question, if it is embarrassed with doubt and difficulty. The court of probate is invested with a large jurisdiction over the marshalling of the assets of deceased persons, compelling distribution, and the payment of legacies. The jurisdiction necessarily involves that of construing wills, and determining the quality and quantity of interest which passes to devisees and legatees. There may be cases of adverse claims and interests, in which the parties necessary to a final and conclusive adjudication can not be brought before that court and a court of" equity clothed with larger powers of bringing before it all parties claiming an interest, would of necessity intervene to-quiet litigation. It is possible, if in this case, the bill had averred that there was a controversy between the personal representative of the widow and her heirs, and the executor, and the legatees and devisees in remainder, as to the quality and quantity of the estate taken by the widow, and it had-been shown all parties could not be brought before the court of probate, and affected by its decree, a case of equitable-jurisdiction would have been presented. But that is not the case made by the bill. So far as is shown, all parties in interest concur, that her estate was limited to her life, and the assets in the hands of the executor are distributable to the remaindermen, according to the terms of the will. If" they do concur, it is not for the executor by presenting questions they may regard as unimportant, because their-' rights and interests are the same, whether the widow had a life interest, or a larger estate, to withdraw the administration from the court of probate.—Harrison v. Harrison, 9 Ala. 470.

4. The questions supposed to be involved in reference to the gift of two hundred dollars to the heirs of Mary Moragne, the court of probate has full jurisdiction to adjudicate finally, in the proceeding they have instituted to compel the execu— *647tor to its payment, and of consequence there is no ground* for equitable interference in reference to it.

5. Without the consent of the personal representative of' James M. Whorton, the court of probate would not have jurisdiction to set-off the debt due the executor for purchases of property against the distributive share which may be found due to him.—Kidd v. Peters, 13 Ala. 91; Bondurant v. King, 15 Ala. 202. It may be that under the facts stated in the bill, a court of equity would have jurisdiction as against the representative of said James M., to set-off the debts due' from him against the decree for his distributive share, even after its rendition. That however is an equity between the executor, and such personal representative, with which the other parties in interest have no concern, and which can not be invoked as a ground for equitable relief as against them.

6. The sale of the lands was made under a decree of the court of probate, in the life-time of James M. Whorton, whether the sale was prior or subsequent to the death of Catherine Green, is not shown by the bill; and there can be no intendment that it was prior to her death, if such intendment is necessary to support the equity of the bill. This fact distinguishes the case from Chaney v. Chaney, 38 Ala. 35. The personal representatives of these parties alone can recover of the executor the shares of the purchase-money of the lands, to which on settlement, it may be ascértained, they are entitled. Whether the widow of James M. can claim that his share of the purchase-money shall stand in the place of his interest in the land, and she shall be endowed thereof; and whether a similar claim may be made by the husband of Catherine Green, are questions in which the appellant has no interest. These questions can arise only after the personal representatives shall have received the shares of the purchase-money to which their intestates may be entitled, and they are proceeding to administer them.

7. The liability of the executor for his purchases at his own sales, the Court of Probate has complete jurisdiction to determine. If it is ascertained that he should be charged with the actual value of the property purchased, and not with the amount of his bids, made with the understanding that, payment should be made in Confederate treasury notes, there is no question of fact, of greater difficulty of solution than such as constantly arise in the settlement of estates.

8. The decree rendered against the executor on the settlement in the Court of Probate, so far as it proceeds to distri*648bution, was unauthorized and should be vacated on proper’ application to that court. The proceedings were instituted and conducted for an annual or partial settlement, and it was not competent for the court, of its own motion, to convert it into a final settlement and render a final decree. King v. Collins, 4 Ala. 363. On final settlement, while it must be regarded as prima facie correct it will be competent for the executor, or for the other parties in interest to show errors in it, wbicb can then be corrected.

We concur witb the chancellor, tbat tbe bill in its present form, and with tbe present parties, is without equity. It is probable however, that there are facts and circumstances, which if properly presented, would render it indispensable to the protection of the appellant, and the prevention of injustice that a court of equity should take jurisdiction of the administration. We think therefore the decree of dismissal should have been without prejudice to the right of complainant to file a new bill, and the decree of the chancellor will be here corrected in that respect, and as corrected will be affirmed.