Sankey's Ex'rs v. Elsberry , 10 Ala. 455 ( 1846 )

GOLDTHWAITE, J

1. This cause, when before us at a former term, was brought here against the parties made at the final settlement.of the estate, but the writ of error here only calls in question the interlocutory decree of distribution of the legacy bequeathed to Mrs. Elsberry by the will of her former husband. There are some difficulties in the way of considering errors in a decree for partial distribution after a final settlement has been made, but we shall not now advert to them, because, if it is conceded the first decree can be reexamined under such circumstances, we are unable to see available error in this record. It is true, the citation is ashed by Elsberry alone, sueing in right of his wife, but this irregularity is not carried into the decree, which is that the executors shall deliver the slaves bequeathed by the testator to his widow, to Elsberry and his Avife, by name. As no exception was taken by the executors to the manner of citation, and as the decree is regular as to parties, we must hold as Ave did before, that there is no error in this particular. [Sankey’s ex’rs v. Sankey’s heirs, 6 Ala. Rep. 607.]

2. The application' to the court by Elsberry Avas for,distribution of the estate, and on this the court engrafts an order for final settlement also. When the executors appear, they ask a continuance of the final settlement, but interpose no objection to the decree for delivery of the slaves specifically bequeathed. Our statute authorizes any one entitled to distribution, to call on the personal representative, and the same remedy is extended to a legatee. [Dig. 196, § 23, 24.] And in the recent case of Harrison v. Harrison, et al, January term, 1846, we held that a partial distribution might properly be made in advance of the final settlement. We think this decision is conclusive, that the county court did not err in making the order in question, the more especially as no objection was interposed by the executors. The case cited is also full to the effect that other distributees are not to be made parties unless called in by the executor.

Judgment affirmed.