Willis v. Willis' Distributees , 16 Ala. 652 ( 1849 )

CHILTON, J.

It is contended that the decree rendered by the Orphans5 Court, on the 1st of February 1841, is final, and that it is conclusive on the defendants in error. If this position be tenable, then the court erred in permitting the dis-tributees to go behind that settlement, and In charging the administrator for a greater sum than was fixed by that decree, up to that time.

The entry, which it is insisted has the effect of a final decree, reads as follows: “ This day being set apart for the final settlement of the estate of Brittain Willis, deceased, due publication thereof having been made, the court proceeded to examine the account and vouchers of Price Willis, administrator, which were found correct, and there is in the hands of said administrator the sum of forty-one 81-100 dollars, as per account current, which was examined, approved, and ordered to be recorded.” Then follows the account of the administrator, by which he charges himself with

“Amount due on last settlement, - - $1103 31

Interest,. 202 00

Making total amount, ... - $1305 31

And credits himself by the board of seven children for three years, at $5 per month, .... $1260 00

Expense of publication, - - 3 50

Leaving balance due by administrator, 41 81

-1305 31”

This decree (if one it may be called) does not possess the first requisite to constitute it a regular final one. It seems to have been an ex parte proceeding by the administrator, who produced his account on the day of settlement, which was examined, pronounced by the judge to be correct, and ordered to be recorded; whereas the statute'required the account to have been exhibited with the vouchers to the Orphans’ Court, upon the application of the administrator for final settlement, so that the judge might examine and audit it, and after having it properly stated, might report the same for allowance to a succeeding term — (Clay’s Digest 226, § 27.) The object of the law in requiring the account and vouchers to be thus presented and stated, and publication to be made, &c., is to give the parties an opportunity to contest it, and to prepare for the contestation, between the presentation of the account and the time set for final settlement. No guardians ad litem, were appointed for the infant distributees, who were wholly unrepresented, and who were illegally charged with $1260. Aside, however, from these irregularities, the act of 1830 (Clay’s Dig. 304, § 42,) declares that all decrees made by the Orphans’ Court on final settlements of executors, administrators, &e., shall have the force and effect of judgments at law, and executions may issue thereon for the collection of the several distributive amounts, against such executor, administrator, See., and the court is required to insert in the final decree the amount of each distributee’s share (Digest, 305, § 44.) These essential requisites to the regularity of the decree are wanting in the case before us. But it cannot he final, because there is not any order that the administrator pay the amount in his hands to any one, and no one is even named in the entry who is authorised to receive it. In short, there is no sentence or judgment of the court that any sum should be paid by the administrator or recovered by the distributees. See, as to the pre-requisites to a final decree, Robison & Wife et al. v. Steele, adm’r, 5 Ala. Rep. 473; Horn v. Grayson, 7 Port. Rep. 272; Douthitt, adm’r, v. Douthitt, 1 Ala. (N. S.) 594; Willis v. Willis, 9 ib. 330; Powell v. Powell, 10 ib. 910.

2. When this case was before this court at a previous term, (9 Ala. Rep. 330,) it was held that annual settlements, when made in conformity to law, are prima facie to be considered correct, but may be impeached by proof showing their incor-réctness. But it was added, that in this case' the accounts are upon their face inadmissible, and such as the County Court had not the power to allow upon a settlement with the administrator. This remark was influenced more particularly, if hot exclusively, by the account for board, &c., which was allowed the administrator against ■ the infant distributees. So far as respects the charge for board, &c., of the children of the in-i testate, the case is concluded by the ■ previous adjudication; •but this item does not occur in any of the annual settlements made previous to the 1st of February 1841. Are the other entries upon this record, which are insisted on as annual settlements, such as to afford prima fade evidence of their correctness, and to cast upon the distributees the necessity of falsifying the accounts ? At first we were inclined to think they were, but subsequent examination has satisfied us fully that we were mistaken in that impression. In the first place, it does not directly appear that the court allowed the accounts presented by the administrator. The entry merely recites that the administrator made his annual settlement as per account current, examined, and ordered to be recorded. But conceding that this criticism on the language employed in the entry is too rigid, and that we will infer a settlement from the fact that the court examined the account and ordered it to be recorded, yet the settlement was not in accordance with the requisitions of law. Not that it is wanting in conformity in some formal or unimportant particulars, but in matters of substance, which are required to be observed for the protection of those whose rights are to be affected thereby. I have examined our statutes in vain to find a law authorising such annual settlements to be made without notice to the parties. I can find no warrant for such ex parte proceeding, and the learned counsel for the plaintiff in error, after having his attention specially called to this point, has been unable to find any — I take it for granted that none exists. The act of 1843, passed since these alleged settlements were made, requires notice, and the statutes existing previously, whenever settlements are mentioned, required them to be made upon notice. These settlements, if such they were, were not only exparte and without notice, but they were made at the same time the accounts were presented, without any order appointing guardians ad litem for the infants interested as distributees, and no publication was made as pointed out by the statute. — Clay’s Digest, 226, § 27. They are then wholly informal and irregular, and the distributees who have had no opportunity whatever of contesting the correctness of the accounts-thustumma-rily presented and acted on, should not be placed in any worse condition than if such settlement had never been attempted. To render such annual settlements prima facie evidence of their correctness, and to dispense with further proof of the items therein embraced on the part of the administrator, they must substantially conform to the requisitions of the statute, at all events, the distributees against whom the record of them is sought to be used as evidence, must have had an opportunity of objecting to the items when allowed, and contesting with the admintrator their justness. — See Willis v. Willis, sup. and authorities on the brief of the defendant’s counsel. But although such annual settlements may be regularly made, the court may examine into their correctness on the final settlement and rectify any mistakes which may have intervened. In Savage v. Benham, adm’r, 11 Ala. Rep. 55, this court held that the annual settlements of executors, &c., before the statute of 1843, had no other effect than to furnish the means of arriving at the true state of the final account, and the preservation of evidence in favor of and against the party making them. 9 Ala. Rep. 330; ib. 615; 10 ib. 910; 5 ib. 473; 1 ib. 594. The court therefore correctly held, these entries did not cast on the distributees the necessity of impugning the accounts in order to compel the administrator to adduce proof in support of them. In other words that such alleged settlements were not prima facie evidence of the correctness of the vouchers, &c. embraced in them.

3. As to the note on Robinson, we think the administrator was properly chargeable with it under the proof disclosed in the record. It appears that it was secured by mortgage, and no reason is shown why it was not collected. It does not appear lhat the administrator made any effort to render the security available. The bill of exceptions must be construed most strongly against him, and this fails to show that the person who purchased the land from the mortgagor had not notice of the mortgage, in which event he would hold it subject to the incumbrance, notwithstanding it had not been recorded. If, from the smallness of the demand, and difficulty and expense of foreclosure, the interest of tbe estate required that he should not have engaged in litigation respecting the note, he should have shown this. But he neither proves this, nor any other fact which shows that he has not been guilty of gross neglect in failing to collect the note, and therefore should have been charged with it.

4. There can, we think, be no doubt that where one is appointed administrator in chief, and receives the assets of the estate in that capacitjr, and after having been removed, and another administrator appointed, is upon the resignation of the intermediate administrator, again appointed, he is liable on the final settlement of his administration last assumed to account for the assets received by him under his first appointment, and which he had never delivered over to the intervening administrator de bonis non. The property remaining belonging to the estate in his hands, is not in any manner changed by the administration debonis mm, it still remains assets in his hands, and being the administrator, he is bound to account for the same. Whether he is called upon to do so as administrator in chief or de bonis non, is a matter of no importance.

We feel no doubt as to the correctness of the ruling of the Orphans’ Court, and contrary to our first impression, determine that the decree must be affirmed.