Sankey's Ex'rs v. Sankeys Distributees , 8 Ala. 601 ( 1845 )

GOLDTHWAITE, J.

1. When this cause was here at a former term, the judgment then existing was reversed for several reasons, but the proceedings in the Court below were considered regular down to the ascertainment of the amount of the assets in the hands of the executors ; the cause was then remanded, that a proper judgment might be rendered, when a guardian should be appointed to the infant distributee, and the privilege was reserved to the guardian to reinvestigate the accounts of the executors, if he should so elect. [6 Ala. Rep. 607.]

, It now appears that the executor contesting the settlement was named as the testamentary guardian of the infant, and he having qualified as such, after the return of the cause to the Court below, in that capacity, he moved to set aside the accounts already stated and ascertained, between himself as executor, and Elsbury as the representative of the sole remaining distributee, which the Court allowed.

2. As soon as the fact was disclosed, that the infant distributee was represented by the same person as guardian with whom the settlement was to be made as executor, all the necessary parties were before the Court to enable it to proceed to a final settlement of the estate, and-the opening of the account was evidently not warranted by the opinion delivered when the cause was here before. The privilege reserved to the guardian'of the infant dis-tributee, was for the benefit .of the ward, and ought not to be used but for this purpose. As the case stood, the presence of this party was necessary, not onl-y that the unity of the. cause should be preserved, but a settlement under the .provisions of. the statute may be compelled, on the petition of any one of those 'entitled to distribution. [Digest, 196, § 23, 24; Ib. 229, § 41, 43; see also Merrel v. Jones, 2 Ala. Rep. 192; Davis v. Davis, 6 Ib. 611.] After the disclosure that the infant distributee was represented by one of the executors, it was clear that Elsbury was the only person competent to. contest the accounts, and those having- been ascertained by-the verdict between him and Stephens should not have been disturbed. We do not doubt that the Orphans’ as well as any other Court, invested with the authority to ascertain facts by means of a jury, may set aside their verdict, but it must be done during the same term of the Court at which it is rendered, unless the motion to set fit aside be continued until another term.

3. It seems then that all the proceedings subsequent to' the reversal, are irregular, and Elsbury would be entitled to set them aside or have them vacated, on a proper application to this Court, and possibly likewise-upon an application to the Court below. No such application having been made, and the judgment remaining in force against Stephens and the other executor, they are entitled to consider the errors which are inherent to it,- and if they can, to reverse it, In this view, all of the errors assigned would be examinable.

4. Under the.circumstances of this case there is now no way in which the accounts between Stephens and Elsbury can be properly re-examined in the Orphans’ Court, it will therefore be immaterial to examine the points made .upon the second trial, if there is any error in the judgment sufficient to reverse it, because Els-bury is entitled to be placed in the same condition as he was, when the Court irregularly set aside the verdict in his favor.

The judgment is joint in favor of Elsbury, as the administrator of his wife, and in favor of the infant ward for the whole of the distributable assets, when it should have been in his favor for one-half only of that sum. The executor Stephens should have been permitted to retain the other half as the guardian ofhis ward. And as between him andhis co-executor, a judgment should have been given for the one-half of the assets to be distributed in that quarter.

5. Under this view, the proceedings of the Orphans’ Court must be reversed back to the first settlement, and a judgment rendered in the Court below on that, in conformity with this opinion.