Harrison v. Harrison , 9 Ala. 470 ( 1846 )

GOLDTHWAITE, J.

1. Our statutes of distribution are in a great measure founded on the English statute of 22 and 23 Charles 2, but instead of being confined to cases of intestacy only, extend to all goods, chattels and personal estate not bequeathed. [Clay’s Dig. 191, § 1.] The section which allows any person entitled to distribution of an. intestate's estate to petition the Orphans’ Court to compel the administrator to make distribution, after the expiration of eighteen months from the grant of administration, (Ib. 196, § 23,) is similar to a provision of the English statute, fixing the period for distribution at one year from the intestate’s death. [4 Burns’ Ecl. L. 285.] Its effect is not to limit the jurisdiction of the court to those cases only, where no will is made, but it merely ascertains the period when the distribution shall be made, of all the goods, chattels and personal estate not bequeathed. It is in this view of the difference between our statute and the English act, the decisions of the King’s Bench restraining the Eclesiastical Courts from compelling distribution in cases where wills existed, which did not bequeath the entire personal estate, are inapplicable. See Petit v. Smith, 1 Lord Raym. 86; Rex v. Raines, Ib. 363; Hatton v. Hatton, Strange, 865.

2. Taking the statute, then, as ascertaining the period when those entitled to distribution may compel the administrator to distribute the assets of the estate, it would seem to follow that all such which then existed, in specie, or which had previously been reduced to money were distributable. We are not aware, however, that the statute has received so extended a construction; and the subsequent act of 1820, (Clay’s Dig. 196, §22,) evidently contemplates the distribution shall be confined to such matters as are usually the subject of sale. When these sections are examined in connection with those which relate to the final settlement of the estate by the administrator, either at the instance of those interested in it, or at his own motion, we think it clear the distribution may be compelled after the expiration of eighteen months, although the estate may not then be finally closed, or the outstanding debts actually paid. The administrator, at that time, must be aware of all the demands for which he, under any circumstances, can be made liable, as creditors are required within that period to present their claims, in most cases, and even as to those which are not barred, the innocent distribution will protect the administrator. [Thrash v. Sumwalt, 3 Ala. Rep. 13.] It is not necessary here to determine whether the administrator, upon such distribution, would be entitled to retain for liabilities actually presented to him, but either not admitted, or not reduced to judgment against him, because the existence of any such in this case, was not made to appear. There seems, then, to be nothing in the general features of this case, which should retard the distribution of the personal estate not bequeathed.

3. The exception to the decree of distribution, because it distributes the slaves named in the will as emancipated, and those bequeathed to a trustee for their use, is one of considerable difficulty. It is certain the Eclesiastical courts of England have no jurisdiction to make distribution, when a will of any kind exists. See Petit v. Smith, 1 Lord Raymond, 86, and other cases cited, supra. It is equally certain that these courts exercised a jurisdiction to compel the payment of a specific legacy; (4 Burns’ Ecl. L. 265, citing Swinb. 18, Terms de La Ley Devise; Ib. 267, citing 1 Roll’s Ab. 919;) though the courts of common law and chancery seem always to have looked upon its exercise with a jealous eye, and to have granted prohibitions and injunctions, whenever a question purely legal arose, or a trust was involved. [4 Burns’ Ecl. L. 267, and cases there cited.] It is not our present object to trace the origin of this jurisdiction, as it exists without the aid of statutes, because with us the legislature has invested the Orphans’ Court with a very extensive control over the whole subject matter of testamentary suits. We have already seen that it has power by the general statute, to compel the distribution of personal property not bequeathed ; and by the subsequent act of 1833, the power is extended so as to enable any one entitled to a legacy, or any estate by will, to proceed in the same manner as a distributee. [Clay’s Dig. 197, § 24.] The inquiry, whether^ property is, or is not bequeathed, and whether one is, or is not entitled to a legacy, or other estate, by will, necessarily includes that of the validity and legal effect of the instrument asserted as a will, as well as its construction. In this view of the jurisdiction, the circumstance that the will under which emancipation is attempted to be given to the slaves named in it, was admitted to probate, does not prevent the court from inquiring into, and pronouncing on the validity of the bequests to any greater extent than it would a court of chancery. As to the effect of this will, and the question as to the necessary parties to be before the court, we shall direct our examination in another part of this opinion. But* while on this head, it is proper t„o say, that the jurisdiction of the Orphans’ Court, although thus extensive, does not seem to extend to cases where trusts are created by will, when the litigation is between the cestuis que trust and the executor as trustee ; or in other terms, when the executor, in addition to his powers in that capacity, is also invested with a discretion, and confidence is reposed in him as a trustee. See Leavins v. Butler, 8 Porter, 380; Portis v. Creagh, 4 Ib. 332.]

4. The pretence that the order of sale obtained by the administrator at a previous day, for the sale of the personal estate, prevented its distribution, may be briefly disposed of. If that had remained unaffected by the injunction, it would have presented no bar to the power of the Orphans’ Court to set it aside. Neither would the fact that it was not carried into effect, furnish the administrator with any excuse to delay the distribution. If a sale of the slaves was necessary to enable the administrator to discharge the demands against the estate, we apprehend this was a proper matter to show in opposition to the distribution; if otherwise, it might justly be considered as a mere attempt to delay the proceedings.

5. The bill in chancery filed by the petitioners, as well as by their co-distributee, Mrs. Moores, even if its object had been the final settlement and distribution of the estate could scarcely be insisted on, as precluding an appeal to the more speedy jurisdiction of the Orphans’ Court, for the reason that was under the control of the petitioners themselves, and would be unavailing if relief was obtained in the other forum ; but without pronouncing a definite opinion how this would be, it is sufficient here to say, that the sole object of this bill is to enjoin the sale of the slaves, and that being obtained, it is questionable if airy other decree can be had, or any course pursued than to dismiss the bill. In our judgment it is no bar to the distribution.”

6. We do not doubt however, that Chancery has jurisdiction, either at the instance of the distributees, to compel a distribution and final settlement; or at the instance of the administrator, to declare the validity or invalidity of the will. The first principle as asserted in all equity courts, and the generale rule is, that Chancery has a concurrent jurisdiction with the Eclesiastical courts, in all cases, and whichever court is first possessed of the cause, has the right to proceed. [4 Burns’ Ecl. L. 266.] The latter is the principle applicable to all trustees, and was extended to an administrator, under a similar will to that exhibited here, in Trotter v. Blocker, 6 Porter, 269. If then, the administrator had first applied to a court of equity to determine the validity of these bequests, or if a declaration by that court was necessary for his protection, it probably would have been proper for the Orphans’ Court to have refrained from a final decree until that direction was obtained; but no such application was made on behalf of the administrator, and the decision of the Orphans’" Court upon the same matter, being equally conclusive in the event that the proper parties are before it, renders it entirely unnecessary to have the opinion of the other court.

7. We come now to consider the exceptions taken to the proceedings for the want of proper parties, and to the refusal of the court to delay the distribution until the representative» of the other distributee were brought before the court. In Graham v. Abercrombie, 8 Ala. Rep. 552, this matter was somewhat considered, and we then held that decrees made by the Orphans’ Court, although at the instance of one of the parties in interest, would be conclusive if the necessary citations were given by the court. In all suits of this nature, whether for distribution or final settlements, the proceedings may be instituted by one or more persons, and the administrator, as to him, is the defendant. If the distribution or settlement involves the rights of others, they are not concluded by the decree, unless brought before the court; but this duty devolves on the administrator, as he is the party for whose protection it is necessary. This is so fully examined in the case last cited, that a review of the authorities is here unne- • cessary; they are found in 4 Burns’ Ecl. L. 369. So far as the slaves supposed or intended to be emancipated, and the trustee to whom other slaves for their use are bequeathed, are now supposed to be necessary parties, no citation or other proceedings was asked by the administrator in the court below, and therefore the objection here would be too late if the will actually was invalid, and would be unimportant if otherwise, because the decree upon its merits, in that event, would be reversed. But in relation to the other distributee, who was not before the court, the application was specific, that the cause should not proceed until her representatives had been cited. This distributee is interested in the allotment or division of the slaves, and the decree would not be binding on her, or her representatives, unless cited to appear and made a party. This the administrator, for his own protection, has the right to require, and having required and been refused, the decree for this cause must be reversed. No particular stress was laid on this matter in the argument at bar, nor was its controlling effect discovered, until the opinion was about to be written, which will account for the decision being different from that at first intended. • •

9. The decree, in point of form, contains no substantial error, so far as we have had our attention called to it. It is perhaps irregular, in directing what shall be done upon the return by the commissioners of the distribution of the slaves among the petitioners. In point of practice, the return and report of the commissioners is subject to exception and revision, and it is only upon its confirmation by the court that the final'order to deliver the property’, is proper, and it is at that time, or subsequently, the refunding bond is examined and approved by the court.

9. We omitted to mention in its proper place, our conclusion as to the will itself. That is so fully covered by the decision of Trotter v. Blocker, 6 Porter, 380, and Coleman v. Alston, 7 Ala. Rep. 795, as to require no other consideration than to state its invalidity, as opposed to our local law. The bequest of emancipation, and that for the use of the slaves intended to be freed, are entirely void.

Judgment reversed and remanded, in order that the representatives of Mrs. Moores may be cited, and made parties if they appear. And also, that the trustee for the slaves may be made a party, if the administrator desires it.