Hearne's Adm'x v. Harbison , 9 Ala. 731 ( 1846 )

COLLIER, C. J.

The writ of error cannot be dismissed, because all the distributees, who are parties to the decree, are not made defendants here. Our statute authorises an amendment, so as to make the writ conform to the transcript; and it will be amended accordingly.

Several years previous to the final decree in dividing the land and distributing the slaves, the shares allotted to the distributees were not exactly equal, and to make up for the inequality, the court ordered that the larger portions should be charged with the deficit in the smaller, and thus the distribution equalized. But although it was so ordered, yet no formal decree was rendered in favor of any of the distributees against the other. Subsequently, in making the final settlement, each one of the distributees was charged with so much as he or she had received, and the shares then made equal by a proper distribution of what then remained in the hands of the administratrix.

The orders first made, by which the share of one distributee was said to be chargeable to another to make up a deficiency, can only be regarded as interlocutory, and not definitive, and if erroneous in themselves, the error was repaired in the final settlement, which gave to each distributee a decree for the appropriate amount against the administratrix. The first orders might serve as a guide for the final action of the court. But be this as it may, the matter was in fieri, and there is nothing in the record to show that it has not been adjusted with a just regard to the rights of the administratrix. If then there was an error as between the distributees, by which they are willing to abide, can she gratuitously ask its correction for them ?

As it respects the want of notice, such as the statute requires, that the account of the administratrix had been examined, audited and stated, and calling upon all persons interested to show cause against its allowance, we think it cannot avail her on error. She had already filed her accounts and vouchers for settlement, and the proceeding was continued from time to time ; notice, then, as it respected her, would have been an act of supererogation. [McLeod v. Mason, 5 Porter’s Rep. 223; Sankey’s Ex’rs v. Sankey’s Heirs, 6 Ala. Rep. 607.

This view is decisive of the cause, the judgment is consequently affirmed.