Wilson's Heirs v. Wilson's Adm'r, 18 Ala. 176

Wilson's Heirs v. Wilson's Adm'r

18 Ala. 176 | Ala. | 1850

CHILTON,'J.

This was a proceeding in the Orphans’ Court of Monroe, for the final settlement of the estate of Mary Wilson, deceased.

*179Upon the settlement, James Robinson, who was the executor of one of the deceased distributees, moved the Orphans’ Court “ to exclude the heirs of Asa Hammond, as legal representatives of the estate of Mary Wilson, upon the ground that the said Asa Hammond received monies, goods, chattels, and effects, in the life-time of the said Mary Wilson, amounting to seven or eight hundred dollars in value, which were received by said Hammond as an advancement to him, and which had not been brought into hotchpot, as required by the statute. The entry of final settlement recites: “ It appearing that the heirs of Asa Hammond, and Sarah Hammond, his wife, have received advancements made to the said Asa Hammond in his life-time, amounting to seven or eight hundred dollars, it is therefore ordered that said heirs be excluded from any share in said estate.”

It is objected by the plaintiffs in error, that the advancements made to Asa Hammond could not properly be charged against his children, it not appearing that he was their guardian, or that he had any authority to receive such advancements for them. The entry, it is true, is quite unsatisfactory, but the court having jurisdiction to make the settlement, we are authorised to make all reasonable intendments in favor of the regularity of its decree. — 6 Por. 219; 1 Ala. 710; 4 ib. 158; 6 ib. 870; 15 ib. 499. We are, therefore, allowed to infer, for the purpose of supporting the judgment, that the advancements were made to Asa Hammond in the life-time of his wife, who was the daughter of the intestate, or, that if since made, said Hammond was duly authorised to receive the same, and that the property so advanced has actually been received by the respective children of Sarah, in equal portions. If either, or all of these hypotheses, were necessary to sustain the decree, we think we should be compelled to indulge a presumption of their existence.

The advancement of the husband, living the wife, would be an advancement of the wife, and should be charged, after the death of both the husband and wife, against those who occupy the same relation to the estate of the wife’s mother which she occupied.

In Andrews, Adm’r, v. Hall et al., 15 Ala. 89, we held that the law requires the child, whose deceased parent has been advanced in his life-time, to bring into hotchpot the share which has been so advanced, or its value, before such child can be *180allowed to participate in the distribution of the intestate’s estate, since, as the representative of his father, he could have no better claim than he would have if living. — Citing 2 Wms. on Ex’rs 919; Proud v. Turner, 2 P. Wms. 560.

In the case before us the children of Mrs. Hammond are entitled to the same distributive share which she would be entitled to, were she in life and seeking a distribution. If, on the marriage or afterwards, advancements were made to her husband, the children, we think, should be required to bring such provision or its value into the estate for distribution, and if they fail to do it, as required by the statute, that they should be excluded from all participation in the distribution of the estate. We cannot, therefore, hold that the court below erred in this portion of the decree, as the facts upon which it is predicated are not set out by the record, and especially are we concluded from saying there is error, since the recital in the decree is, that the children have received the property, &c., thus advanced to their father.

It is next objected that there appears by the record to have been infants interested in the settlement of this estate, and no guardians ad litem were appointed for them. The infants are excluded from the distribution because they fail to bring into hotchpot, the share received as advancements by them. This we regard as erroneous. The infants themselves are incapable of making an election whether they will account for the advancements or be excluded from the distribution. In Craig & Wife v. McGehee & Armstrong, 15 Ala. 49, we held that it was error to decree a sale of land belonging to the estate of the deceased, without appointing guardians ad litem for the infant heirs. So in the case of Jenkin’s Distributees v. Jenkin’s Adm’r, ib. 693, we laid down what we regard the correct practice in regard to the appointment of such guardians. — See also, Kavanaugh & Wife v. Thompson, 15 Ala. 827.

In the case before us, the rights of these infants have been determined upon without affording them an opportunity of contesting. They.could not, as we have said, make the election to bring the advancements into the estate. This could be done by their guardian ad litem with the concurrence of the court, as we held in Andrews v. Hall, 15 Ala. 85-90; yet they are excluded for not doing what it was not legally in their power to do. The *181object of the statute requiring the appointment of guardians ad litem, was to protect infants, to see that there was some one before the court, as their representative in the suit, who would see to it that they were not prejudiced. Such guardian’s duties are defined by us in the case last cited. Nothing of the kind, however, was done in this case, and the decree of the Orphans’ Court for this reason is clearly erroneous.

The case of Parks v. Stonum, 8 Ala. 752, is pressed upon us as an authority opposed to this view. In that case it was held that the failure of the Orphans’ Court to appoint guardians ad litem, for infants was not erroneous, unless the infants appeared previous to the decree of final settlement, and for the purpose of contesting the decree. We feel constrained to hold that this decision of Parks v. Stonum, so far as it requires the appearance of the infants for the purpose of contesting the decree necessary to their having guardians ad litem appointed for them, is not in conformity with our views of the law, and of the object and design of the statute. The reason why the court should appoint such guardians is, that the infant is deemed incapable of appearing and protecting his rights. To require him to appear for the purpose of contesting, as a pre-requisite to such appointment, would in many cases require an impossibility, for he may be of such tender years as to be wholly incapable of taking any step in the matter. The authority refered to by the court in Parks v. Stonum, 8 Ala. 752, of Taylor v. Reese, 4 Ala. 121, sustains the view we here take, and although the heirs in that case were not present, it was held that minors should have guardians appointed to protect their interests on the final settlement. It is not necessary to notice the objection that proper notice was not given. Let the judgment be reversed, and the cause remanded.