Graham v. Abercrombie , 8 Ala. 552 ( 1845 )

GOLDTH WAITE, J.

1. The first inquiry here, is with reference to the rights of these plaintiffs to sue out a writ of error on the final decree. In terms, they certainly are not parties to it, and though in it the assumption is made,that James Abercrom-bie once was entitled as a distributee, yet the assumption also is made, that his interest was assigned during his life-time to some other person. The decree is neither in his, or his administrators’ favor; but the representatives of the estate then settled, are directed to retain his distributive share to abide legal process. In this particular, then, the decree is a denial to recognize him as entitled to distribution, and resolves the question into the same one which the Court below decided, when it dismissed the plaintiffs’ petition.

In proceedings at common law, and usually in equity, the plaintiff sets out the nature of his claim upon the record, and that is inquired into at the same time as the other matters in dispute; but the mode of proceeding is different in testamentary causes, before the eclesiastical courts. In these, the administrator, &c. in possession of the fund, is entitled to call upon the party invoking tha aid of the Court, to propound his interest, and if the interest is disputed, to controvert it by an exceptive allegation. [McRae v. Pegues, 4 Ala. Rep. 158.] If the interest is made to appear, the petitioner is admitted as a party, and if, upon exception, it cannot be shown, the petition is dismissed, because it is the interest alone in the subject matter of controversy, which entitles the one party to call upon the other. In its very nature, this investigation is always a preliminary proceeding, and if dismissed, the party has no right to interfere with subsequent proceedings until he is reinstated. In Cawthorne v. Weissinger, 6 Ala. Rep. 714, we applied this' rule to a creditor of an insolvent estate, whose claim had been rejected in a proceeding comnrienced prior to the act of 1843, [Dig. 195, § 14,] and held, that the proper mode of examining the order rejecting his claim, was by certiorari. The principle of that decision is supposed to govern this case, and shows, that the proper mode to examine the order dismissing the plaintiffs as parties, is by certiorari, and not by writ of error. To avoid any misconception as to the extent of the decision, it is proper to remark,- that by virtue of the act before cited, a writ of error is now given to the individual creditor, and to the personal representative when the contest is between them, upon the admission or rejection of a claim against an insolvent estate.

The result of this conclusion is, that t'he writ of error must be dismissed, but as the parties would probably proceed in the mode indicated, without a decision upon their claim,-it is proper now to consider whether the plea assuming the fact stated by it as true, is sufficient to bar the plaintiff from proceeding to enforce distribution.

The act which provides, that any person entitled to the distribution of an intestate’s estate, may at any time after eighteen months from the time of granting admininistration, petition the Orphans’ Court for a distribution, [Dig. 198, § 23,] merely regulates the mode in which the Court, shall proceed; but its jurisdiction over the matter of distribution, may be referred to its general testamentary powers, which are given by another act. [Dig. 300, § 21.] Indeed, this act seems to stand in the place of the statute 22 and 23 Chas. 2, c. 10, by which the ordinaries in England were invested with jurisdiction'to ‘compel administrator's to settle the estate, and pay the samé by due-course of eclesiastical law, without the limitation imposed by the subsequent statute of 1 Jas. 2, c. 17, which restricted the compulsory jurisdiction, except at the instance of some person on- behalf of a minor, a creditor, or the next of kin. See these statutes cited 4 Burn. E. L. 369.

It' is evident, in the very nature of things, that there must be some mode, and some Court, by means of which an administrator may be relieved from the responsibility of ascertaining, who are entitled to the surplus in his hands, and under whose direction a payment may be safely made. It is true, no adjudication, either English dr American, is to be found, which touches the point, but it seems in some degree established by the course of proceedings in the eclesiastical courts. Thus it is said, the creditors to whom the testator owed any thing, and the legatees to whom the testator bequeathed any thing, and all others having an interest, are to be cited to be present at the taking of the account ; otherwise, the account made in their absence, and they never called, is not prejudicial to them. And again, it behooveth the executor, or administrator, when he is cited by any one of the parties to render an account, to cite the next of kindred, in special, and all others in general, having, or pretending to have, interest in the goods of the deceased, to be present if they think fit at the rendering and passing of the account. ' And then, upon their appearance, or contempt in not appearing, the Judge will proceed to give sentence, and the account thus determined will be final. And this is expedient to be done, whether [the account is settled] at the instance of any party or not. [Burns E. L. 369, citing Swin. 468, and 1 Ought. 354.] After the Court has pronounced on the validity of the accounts, the executor or administrator ought to be acquitted, and discharged from further molestation and suits. [Ib. 371.] In the Archbishop of Canterbury v. Tappan, 8 B. & C. 151, the Court of Kings’ Bench admits that an administrator has the right to require the sentence of the ordinary for his own protection, and determined, that no suit could be maintained on his bond without one. If then, the administrator is protected by the decree of the ordinary, when there are distinct claims for distribution, why should he not be protected when the claim is between the distributee and his as-signee ? or what right can a distributee who has assigned his interest be said to have, which will enable him to cite the administrator to an account? Yi^e can find no answer to these questions which do not go the whole extent of denying the validity of any assignment of the interest.

Now the general rule in equity is, that a chose in action is assignable, and vests in the assignee all the interest of the assignor. ¡[Story’s Eq. § 1039 to 1057.] Beyond this it has been repeatedly held, that if the debtor assents to the transfer, when the chose in action isa debt, the right of the assignee is complete at law, so that he may maintain a direct action against the debtor. [See cases cited Story’s Eq. § 1039.] A distributive share cannot be said to be in the nature of a debt, as it is entirely uncertain in amount, until ascertained by the settlement, and therefore no suit at common law can be maintained, in the name of the assignee. But in equity he is entitled to proceed in his own name, directly, against the cestui que trust, and we can see no just reason why he may not proceed in the same manner in the Orphans’ Court, where the transfer is, with respect to a matter in which that Court possesses concurrent jurisdiction certainly, (if not so exclusively,) with a Court of Equity.' It is true the statute of 1843 seems to contemplate that the settlement of estates shall be made by the personal representative on the one hand, with the legatees, or distributees, on the other, as-it requires the party to file a statement on oath, of the names of the heirs, or legatees of the estate. [Dig. 229, § 43.] But we have seen that the same matter was necessary according to the common course of practice in testamentary causes, and therefore the proper construction of it is, to consider it as merely affirmatory of what the law then was, and as introducing no new rule. We are the more strongly inclined to this view, as the -entire' scope of our legislation upon the subject of the rights of distributees and legatees, seems to be, to give the Orphans’ Court concurrent jurisdiction, to say the least of it, with Courts of Equity, of all matters affecting their rights. Besides this, any other construction would throw either the assignee or the administrators into a Court of Equity, to restrain the action of those plaintiffs who, upon the record, are shown to have no interest in this litigation.

’ Our conclusionis thatifMr. Abercrombie,in his life-time,assigned his interest in this estate to another, his representatives are not entitled to be heard in its settlement, and that all his rights have devolved on, and may be asserted by, his assignee, in his own name. ^

It will be seen, we have omitted to examine the other questions made by the assignments of error; this is not because we consider them unimportant, but because they do not affect the plaintiffs, until they show themselves entitled to raise them, by being parties to the record.

Writ of error dismissed.