Powell v. Powell , 10 Ala. 900 ( 1846 )

GOLDTHWAITE, J.

-1. When this suit was here at a former term, the only point decided was, that the writ of error was prematurely taken. It is true, we expressed an opinion, that the accounts exhibited with the answer were responsive to the bill, but in that matter, the Judge delivering the opinion, was evidently mistaken in his examination ,of the transcript. There is nothing in the former consideration of the cause, to conclude us now from its full examination.

It will be seen, if the statements of the bill are looked to, that the complainants call for the exhibition of the accounts of sales, remaining in the possession of the defendant; and not for her to set out such accounts of the estate as were left by her ■ intestate. She asserts her inability to comply with the call as made by the bill, but sets out a document in the hand-writing of her intestate, which purports to be the copy of the settlement of the estate made by him in 1822, with the orphans’ court of Montgomery county. This certainly is not responsive matter, which will make it evidence, without further proof on behalf of the defendant. Possibly the complainants would be entitled to use it, but if they should, the whole, as an admission, must be taken. It will be borne in mind, that although it purports to be a copy of an office document, yet it is neither proved as a sworn copy, or verified by the certificate of the proper officer. Without further proof of authenticity, it was clearly inadmissible as evidence for the defendant.

2. If however, it was important to show a settlement with the orphans’ court, of the estate, up to the year 1827, it might have been established as an exhibit by proof at the hearing or on the account before the master. Its effect as evidence would then have been a proper subject for consideration, and we incline to the opinion that it would be prima facie evidence for the administrator, as it is scarcely practicable for vouchers or proofs, to be presented after the lapse of so many years. Several of our statutes seem to treat of the power of the orphans’ court over the accounts of executors, as a matter of voluntary jurisdiction, and it is said the ecclesiastical courts of England ex officio, require inventories to be exhibited, [Philips v. Bignel, 1 Phil. 239.]

It is not important, however, now to decide the effect, as evidence, of a voluntary settlement, or statement of an account in the orphans court, as the point is not directly presented, and as it may hereafter be examined when this matter is again before the chancellor.

3. The other accounts exhibited with the answer, under the circumstances of the case, were not evidence of a stated account against all the complainants, and consequently could not be the basis upon which to state the account in the master’s office. It is true, if the complainants, Thomas A. Powell, and Lee, and Mrs. Keener, were the sole parties, the account stated to them, or rather to Powell and Mrs. Keener, in 1838, which it seems from the testimony of Mr. Cook, was retained for nearly a year, without calling it in question, would bind them, at least so far, so as to cast on them the burthen to surcharge and falsify it; yet as to the other complainants, no attempt was made to connect them with the transaction, or to show the account was procured and stated with their consent. The same remarks will apply to the presumptions which might legitimately arise from the examination, and implied admission of the vouchers submitted for their inspection in 1839, as asserted by the answer, and proved by Mr. Cook. [Langdon v. Roane, 6 Ala. Rep. 518.] The direction to the master to consider this general account, and the vouchers, as prima facie correct, was to some extent .erroneous, and their proper influence on the account before the master, will be hereafter adverted to.

4. The deposition of Mrs. Keener was propcily suppressed, as she is clearly an incompetent witness, to increase or establish by her testimony, the quantity of interest assigned by her to the complainants. She is the assignor of an interest, and if competent to establish it, there is no case in which a party might not establish his own demand, under pretence of assignment to another. We apprehend no case can be found where a witness has been allowed to first assign a disputed chose in action, and afterwards to establish its value by his own oath. The principles settled in Mason v. Maury, 8 Porter, 211, and Chapman v. Pruitt, Ala. Rep. are direct authorities on this point of the case. But although her incompetency as a witness is clear, there is no valid objection to giving effect to the aseignment, when the interest is sufficiently established by other proof. It is true, at law the interest in a chose in action cannot be so. assigned as to enable the assignee to sue in his own name, yet a different rule obtains in equity; there he is looked upon as the true o vvner, and as such, in a proper case for equity jurisdiction, is entitled to sue.

5. As the decree will be reversed, in consequence of the erroneous directions to the master, in relation to the allowance of the accouts and vouchers exhibited with the answers, as evidence for the defendant, it becomes proper to state the principles upon which the account should be stated by him hereafter.

By reference to the several clauses of the will, it will be perceived no property whatever is left to the children of the testator, to come to their possession previous to the time when they severally should come to the age of freedom, or should marry, or until their mother should marry again, or die. The whole of the personal and real estate, until the death or marriage of the widow, was loaned to her, without further reservation than to allow each child, as it married or came to the age of freedom, to have two of the slaves thus loaned. The property of the estate which the executor was permitted to sell under the will, consisted chiefly- of two slaves, and in point of fact, one of these was not sold until the marriage of the widow, in 1832. The presumption is therefore irresistible, that the testator expected his widow to maintain herself and children by the use of the slaves, land and stock, loaned to her under these circumstances. She was entitled to th© immediate use of the entire estate, except the two slaves, and such other effects as were not included in the loan, and as a consequence the- proceeds of the labor of the slaves, upon the land, was as much belonging to her as any property held absolutely. It is true, the executor seems to have managed the farm in that character, but every thing was in the possession and use of the widow, but with reference to all his acts in this connection, he must be considered as her agent, and accountable to her only for the proceeds of the crops, which indeed formed no part of the assets of the estate, and which do not pass to the complainants by the transfer executed by Mrs. Keener at a subsequent day.

6. The assets of the estate derived from the sale of the slave Tom, and other matters sold soon after the testator’s death, as well as from all other sources, made the fund from which the debts of the estate were to be paid, and the residue, if there was any, as a part of the estate which, under the will, became subject to distribution after the marriage of the widow with Mr. Keener, in 1832. With respect to those assets, there can be no question of the right of the complainants to have an account. The next subject matter of the account is the sale of the property made in 1832. It appears that this sale produced something near $2000. And it is the disposition of the proceeds of this sale, which, in all probability caused the whole misunderstanding, out of which this suit has originated. This entire sum was received by the executor in notes, and it is quite likely the expenses of the family, with the education of the children, had exceeded the sum's received for the sale of the produce of the farm, by something near the distributive share of Mrs. Keener in the estate. Instead of stating the accounts and settling them in the ordinary way in court, the executor conferred with Mr. Keener, then representing the widow, and all the children, with regard to a settlement. According to the evidence of William S. Keener, it was then admitted by the executor, that he had $ 1200 in notes, which was distributable to the children, and Mr. Keener was satisfied nothing was coming to him in right of his wife. No actual settlement took place at that time, but this admission, so far as the interest of Mrs. Keener is concerned, is certainly sufficient to cast on her the burthen of showing that the parties were mistaken in their conclusion. Afterwards, something more than $1000 of thé notes remaining in specie, at the death of the executor was paid over by the defendant, his administratrix, to the succeeding representative of the testator.

In this view of the case, as it seems to be made from the proofs in the cause, it is evident the account to be taken is somewhat complicated, and without pretending to adjust it finally, we think it will be proper to direct the master—

I. To take an account of all the assets of the estate, reduced to money by the executor, previous to the sales in 1832.

II. To add to the sum thus ascertained the amount of the sales in 1832, deducting therefrom the amount of the notes paid over to the administrator de bonis non by the defendant.

III. To state an account of all the debts of the testator, paid by his executor, of all the expenses of administration, commissions, &c. and to deduct the amount thus ascertained from that produced by the assets as before indicated. The balance thus ascertained will form the distributable fund which is to be divided into five parts.

IY. Another account will then be stated between the executor, as the agent of the widow, in which he will be charged with the proceeds of the cotton, &c. received since 1822, to which will be added one of the distributive shares previously ascertained.

Y. He will then be credited with all the vouchers and items contained in the general account exhibited in the answer, which shall not be found proper charges against the estate of the testator, unless such accounts and vouchers shall be surcharged and falsified by the complainants representing Mrs. Keener.

YI. If the balance of this account is found against Mrs. Keener, it must be deducted from her distributive share of the estate, and if there is a remainder, that will be added to the other four distributive shares of the complainants. If the sums to the debit of Mrs. Keener, exceed the sums to her credit, no consequences will flow from this account, beyond the extinguishment of her distributive share.

7. In regard to interest, our statute merely recognizes the general principle of equity, that an executor using the funds of the estate, is chargeable with interest, but in general, when no use is made of them,, he is not so chargeable, unless guilty of fraud dr laches. [Stewart v. Blaney, 2 Ridg. 204; Dawson v. Massey, 1 B. & B. 231.] It is impossible for the defendant to discharge her intestate by the statutory oath, and as wilful negligence cannot be imputed, but must be shown, no interest is proper except upon the final balance. See case last cited.

8. With us, the allowance of compensation to éxecutors and administrators, to a reasonable extent, is warranted by constant practice, and it ought not to be refused, except in cases of wilful default or gross negligence, by which loss to the estate has been the consequence. Nothing of that kind is made to appear in this case, and therefore commissions were properly allowed by the master.

We have thus ascertained the error of the decree as rendered, and the principles which we suppose- should govern the future accounts, but in reversing the decree, although we give costs against the defendant in this court, we allow her to charge it against the estate of her intestate’s testator.

Decree reversed and remanded.