Rhodes v. Turner , 21 Ala. 210 ( 1852 )

CHILTON, J.

— The plaintiff in error having, as executor, taken upon himself the execution of the will of William H. Howell, deceased, on tbe 8th April, 1831, filed his accounts and vouchers in the Orphans’ Court of Mobile, which had granted him letters testamentary, for a settlement of the estate. A day was appointed and publication duly ordered, for all parties interested to appear and show cause why the account should not be allowed.

On the day thus set apart, viz: on the 30th May, 1831, it was ordered, that the executor “pay all the claims which are marked passed on his exhibit, and also, those therein marked as suspended, if proved in sixty days, which time is allowed for proving said suspended claimsand it was ordered, “ that all other claims on said exhibit be rejected,” and that “ the said executor pay over to those legally authorized to receive the same, the sum of two hundred and thirty-one dollars, that being the balance of said assets admitted in said exhibit, after paying the privileged and ordinary debts as allowed by this court.”

Afterwards, on the 26th day of April, 1832, a citation was issued to the executor, requiring him to appear before the county judge on the 28th of the same month, to show causé why he should not be decreed by said court to pay over to Joseph Arrington, husband of Lucy M., (late Lucy M. Howell,) and guardian, in right of his said wife, to Emily Howell, the said Lucj^ and Emily being legatees under the will of William H. Howell, deceased, the moneys in his hands as executor of said will, remaining after final settlement of the estate of said Howell.

The executor appeared in obedience to this citation, and it was ordered, “that he pay over to said Joseph Arrington, the sum of two hundred and thirty-one T\‘T dollars, and also the sum of ninety-three dollars, that being the amount of •suspended claims not proved within the time heretofore limited by the order of this court, deducting the sum of one hundred and ninety-one TW dollars, which said executor claims the right to retain in his hands, and which is to remain subject to the further order of this court.”

Nothing further appears to have been done, until the 27th August, 1833, when Wm. J. Bettis applied to the Orphans’ Court, to have Bhodes, the executor, removed, and himself appointed as administrator cum test, annexo, &c. Citation was accordingly issued, returnable on tbe 16tb September, 1888.

On tbe 8th September, 1838, Rhodes made a written resignation, which he sent to the Orphans’ Court judge, in which he stated, that he 'l had long since made a settlement of said estate, and paid over all funds to Samuel Acre, Esq., of Mobile, attorney for Doctor Arrington,” &c.

This resignation was filed on the 17th October, 1833, and “ accepted” by the court, and, thereupon, Bettis was appointed administrator.

Here the matter rested until the 1st October, 1850, a period of seventeen years, lacking a few days, when application was made by Samuel M. Turner, who had married Emily Howell, for citation requiring Rhodes to come forward and make final settlement; setting forth the fact of his residence beyond the State, and praying publication. An order for settlement and publication was accordingly granted.

On the 13th January, 1851, Rhodes not appearing, it was ordered that Turner and wife state an account ex parte, which was done, charging the executor with one-half of the amount of money remaining in his hands, as per settlement with said court, on the 28th day of April, 1832, $162.26, which, with interest from that period until the 10th February, 1851, made the sum of $106.27; and the court proceeded to render final judgment against Rhodes for this sum.

To reverse this judgment, the executor brings the case to this court, and insists, 1. That the length of time was a bar to any proceeding against him. 2. That, if it was not, the executor had no notice, as required by the statute, as to when the account should be allowed. 3. That there was a final settlement, which was conclusive upon the parties, and consequently no subsequent proceedings for another settlement Could be entertained; and, 4. That the judgment should have been in favor of all the distributees, so as to make the settlement final, and not in favor of one, leaving the other to bring the executor to another settlement.

1. The act of 1843, Olay’s Dig. 230, § 47, authorizes the Probate Court, when an executor or administrator, &c., removes beyond the jurisdiction of the county granting letters testamentary, or of administration, upon the application of any one interested, to cause notice to be given, by advertisement in some newspaper published in this State, requiring such executor, &c., to file his accounts and vouchers for settlement at a regular term of said court, to be holden not less than three months from the date of said notice; and if the executor, &c., fail to appear and state his accounts, &e., the judge may state the account ex parte, charging the executor with such amounts as shall appear, upon the best information, to have come into his hands, and proceed to settle and decree upon the same, “ as now required by law.” The law to which reference is made in this act, is doubtless the act of 1806, which required the judge of the Orphans’ Court, when the executor presented his account, &c., for final settlement, to audit said account, and after causing it to be properly stated, to report it to the next term for final settlement; the executor being required to give at least forty days’ notice of his intention of having such account presented for allowance at such term, by posting up notice thereof in three of the most public places in the county, or advertising three weeks in some newspaper, &c. Aik. Dig. 182, § 27.

This statute was so amended by the act of 1822, as to require the judge, instead of the executor, &c., to cause notice to be published, and authorizing him to render judgment for the printer’s fees. Aik. Dig. 252, § 33.

We think, it is very apparent from the several statutes then in existence, that the account, whether stated by the executor, or by the court in his absence, should lie over, and be presented for allowance at a subsequent term, and that at least forty days’ notice should be given, of having said account allowed at the term to which it is referred. This notice, it has been several times decided, was required, that the parties interested should have an opportunity afforded them of examining and contesting the account. Legatees of Horn v. Grayson, 7 Porter, 270; Douthit v. Douthit, 1 Ala. 594; Parks v. Stonum, 8 ib. 752. The stating the account is a necessary preliminary to the final settlement, but after it is stated, it is open to exception until allowed on final settlement. Ibid.; see, also, Hall v. Wilson’s Heirs, 14 Ala. 295, 301.

Indeed, the act of 1843, under which the petitioners proceeded, clearly indicates, that the executor shall have an opportunity of contesting the account, as stated, by allowing Mm to come in at any time before the final decree, and by paying the cost, and filing his accounts and vouchers, to have the ex parte proceedings set aside, in which event the court is required to audit and state the account for allowance, as required by the previous law.

2. In this case, instead of stating the account between the estate and the executor, so as to pronounce a final decree concluding all the parties, and awarding to each legatee his share, the court allowed one of the alleged legatees to make out a partial account, embracing only one-half of the supposed balance in the hands of the executor, and leaving the remainder undisposed of by the decree. A final decree, as the term imports, should be definitive as to all the liabilities of the executor to the estate, and should also award the distribution of the fund, having all the distributees before it. Boyett v. Kerr, 7 Ala. 9; Crothers, Adm’r. v. The Heirs of Ross, 17 Ala. 816, 822 ; Clay’s Dig. 304.

Again: this decree was rendered two days after the account was stated, and, of course, without the forty days’ notice required by the act we have cited. This was clearly erroneous.

As the case must go back, it is necessary that we notice the other points which will likely arise upon another trial.

3. The record fails to show a decree finally settling this estate. True, an amount is ascertained to be in the executor’s hands, upon his application for a settlement, and he is ordered to pay over a portion of the fund, but the balance is ordered to be retained by him until the further order of the court. We think the Probate Judge may properly regard this as an interlocutory decree, and being prima facie evidence of its correctness, unless impeached for errors or mistakes, the judge may well make this accounting the basis of his final decree, as he appears to have done.

4. The time which elapsed in this case was not sufficient, at the common law, to have raised the presumption of payment by the executor, of the amount due the legatees upon a settlement of the estate, and our statutes fix no period as a limitation to proceedings against an executor or administrator in the Orphans’ Court, to compel him to come to a final settlement. We do not tbink that tbe six years’ statute, prescribed as the limitation to actions at law for an account, and which, by analogy, the Chancery Court adopts, can apply ; for the court he: e has the administration of the estate in progress, and the proceedings before it must be considered as in fieri until the dual settlement and discharge of the ex-cutor. It must not, however, be understood that there is no limit within which a party must be required to invoke the aid of the court, in compelling the administrator or executor to a settlement. •

If a final judgment had been rendered, according to the principles of the common law, it would be presumed to have been paid after the expiration of twenty years; and if the parties allow this period to elapse without taking any steps to compel a settlement, we think the presumption of payment arises, and the executor or administrator should be exempted from the necessity of hunting up evidence to prove accounts and vouchers which ordinarily enter into such settlements, and which, after such a lapse of time, it would perhaps, in most cases, be impossible for him to obtain. This period of twenty years, we apprehend, would date from the time when the administrator or executor might have been called to a final settlement of the estate.

Let the decree be reversed, and the cause remanded.