Brazeale's Adm'r v. Brazeale's Distributees , 9 Ala. 491 ( 1846 )

ORMOND, J.

Many of the questions raised by the assignments of error, and argued at the bar, are supposed to grow out of the agreement entered into between the attornies of the partie's. The validity of the agreement has been assailed, because, as is urged, one of the attorneys acted only for a portion of the distributees. Conceding'that he did not represent them all, we are not able to perceive that that circumstance can avail the other party. The distributees being notified to attend, were in contemplation of law present, and if not actually present and assenting to it, are concluded by the action of those who in fact attended, and conducted' the cause for the benefit of all, precisely as all would have been concluded by the action of the court in making the settlement according to law, if none had attended;

But if this proposition were doubtful, if after hearing of it, they assented to it, and were willing to be bound by it, the other party, who entered into the agreement with knowledge of the fact, that all had not -assented to it, would be bound by it. That is this case. All the distribute'es are now parties defendant in this court,‘insisting on the settlement made pursuant to the agreement, whilst it is attempted to be repudiated by the other party.

The agreement, however, was not necessary to give the court the power which it actually exercised in this case. The agreement speaks of “previous settlements,” but in fact there had been no previous settlement made by the administrators. If partial settlements had been previously made, they would have been considered correct, prima facie, but might have been surcharged and falsified, by the distributees on the final settlement, as was held at this term of the court, in the case of Wills’ Adm’r v. Willis’ Heirs, supra.

What appears to have been considered as “ settlements,” when the agreement was entered into, were ex parte allowances made to the administrators at various times; such as the following: “ Ordered by the court, that Morgan Brazeale, and Edward F. Brazeale, adm’rs, &c. be allowed the sum of $499 873, to be paid out of the estate.” A similar order allows to Morgan Brazeale, adm’r, $423 313. and there are others of the same character. No authority whatever is shown upon the record, for making these allowances. They appear to haye been made exparte, without any cause being assigned for this extraordinary action of the court, and are in truth mere gifts of so much of the estate to the administrators; and without any agreement that the court should reconsider them, it was the duty of the court on the final settlement to treat them as absolute nullities.

It appears also, that one of the administrators set up a claim against the estate in right of his wife, for the board of some one, (but who is hot shown,) for twenty years. A jury was empannelled, and by their verdict he was allowed $610 60. which was confirmed by the court. This whole proceeding was a nullity, for the reasons already given, as well as because no sufficient cause was shown, for empannelling a jury, without which no question can be submitted by the’Orphans’ Court to a jury, as was held in the case last cited.

Such being the nature of what are called “settlements previously made,” it was the duty of the court, on the final settlement to disregard them entirely, as they were of no validity whatever. The result therefore was not changed by the agreement which was entered into.

There can be no doubt that the administrators were liable to be charged on the final settlement with claims due the estate, which had been lost by their neglect, as was held in Duffee, adm’r, v. Buchanan, 8 Ala. Rep. 27. Nor, we apprehend,. could there be much room for doubt, that an administrator would be held responsible in the same way, for the value of any property of the estate, whether a chose in action or a chattel, which he had converted to his own use. It is not however necessary to determine this point, because no such charge was made against the administrators in this case. The conrt, it is true, declares, “that they had omitted to charge themselves with all the goods, rights and credits, money and effects, which have heretofore come to their possession, as such administrators,” but no action of the court follows this declaration. The'court immediately proceeds to the examination of the account filed by the administrators, and so far as we can judge from the record, makes no alteration on the debit side of the account. They are charged with the debts due the intestate at his death — with the monpy left by him, an«k the amount of the sales made by the administrators of the estate at different times. All of which is shown by the inventories previously returned. If any of these debts were lost without their fault, it certainly was their duty to have shown it. Prima facie, they were liable for the amount of the debts due the intestate, which they did not return “ desperate,”' in their inventory, and for the gross amount of the sales made by them. And unless they had shown by their affidavit, that they did not use the money, were properly chargeable with interest from the 'time the. debts matured. •

As to the credits, with the exception of the illegal allowances previously made, the Court did not so far as we are informed by the record, or can judge from the account, refuse any credit demanded. The compensation allowed, if that question were open, seems to have been very liberal. $200 was allowed them for travelling expenses, and $517 54 for their trouble. These questions do not however, properly arise upon the record.' If it is intended to raise in this court a question as to the propriety of the admission, or rejection of any item of an administrator’s account,- it must be done by an exception. In this case, it does not appear that any objection was taken to the action of the court, and on its face it appears to be strictly correct.

It remains but to consider the final decree making distribution among the heirs. When the distributees have been cited to attend the final settlement, it is, if regularly made, conclusive upon them, although they do not attend. So also, the final decree is conclusive upon the administrator as to their right to distribution, as he should have contested this matter at a prior period of the cause. ]McRae, adm’r, v. Pegues, 4 Ala. Rep. 158; Graham v. Abercrombie, 8 Ala. Rep. 552; Parks v. Stoneum, Id. 752, and Watson and Wife v. May, Id. 177.

It was doubtless the proper course to render a separate decree in favor of each of the distributees, when upon a final settlement the amount for distribution in the hands of the administrator is ascertained; if not then made, it may be done at a succeeding term. [Welch v. Walker, 4 Porter, 124.] No decree of distribution can however be made, unless the administrator is actually or constructively present. At the final settlement, he is present, an actor in the proceeding, but if no decree of distribution is then made, he must have notice afterwards, when such a decree is moved for. The necessity for notice is apparent, when it is considered that he is concluded by the decree from contesting the right of those in whose favor the decree is made, to distribution of the estate. Since the final settlement, changes, by death or otherwise, may have taken place, depriving those of the right to a' decree of distribution, who were entitled when the settlement took place. These are matters which the administrators had the right to contest, and it was error to make the decree of distribution without a notice to them, setting forth when the decree would be made, and who claimed the right.

It does not distinctly appear from the record, but such is probably the correct inference, that Morgan Brazeale, in whose favor a decree is rendered as distributee, is the same person as the administrator of that name. In such a case, the proper entry would be to permit him to retain his portion of the estate in his hands, instead of a formal decree in his favor. This is however an irregularity which could work no prejudice, and for this cause the decree would not be reversed ; but for the error of rendering the decree of distribution without notice to the administrators, the final decree is reversed, and the cause remanded, that a proper decree of distribution may be rendered.