Barnett's v. Tarrence , 23 Ala. 463 ( 1853 )

LIGON, J.

The final settlement of the estate of David Barnett, deceased, made in June, 1832, does not appear to have been in any manner questioned in the court below on the trial from which this writ of error is prosecuted, or, in other words, it does not appear that the fairness of that settlement, as to the assets of the estate embraced in it, was denied; its character as a final settlement of the whole estate of the testator was alone put in issue.

It is true the record does not show that the parties in interest were all brought in as the statute requires, or that the notices were regularly served, or that publication was made according to the order of the court made at the January term, 1832, appointing the second Monday in April, 1832, as the time when such final settlement should be made. But at- that term of the court, it appears by the record, an entry was made in these words: “This being the day set apart for the final settlement of David Barnett, deceased, came the executors of said estate, and by consent said final settlement is postponed until the Tuesday after the second Monday in May next.”

After so great a lapse of time as has intervened between the making of the order for final settlement in this case, and the time at which the defendant in error exhibited his petition for citation against the surviving executor, requiring him to make final settlement, (a period of more than twenty years,) this court will presume, in favor of the correctness of that settlement, that the necessary.notices were given, and that the parties in interest were present, consenting to the continuance. If they appear andaré consenting to the action of the court in one part of the proceeding, they cannot afterwards be heard to complain of any irregularity in the manner of bringing them in. In such case, the court acquires jurisdiction of the persons by such voluntary appearance, and may well proceed to judgment or decree in the cause. A decree rendered under such circumstances is binding on the parties to it, until it is reversed in the proper court; and the court rendering it has no power to review or annul it.

In this case, the Orphans’ Court proceeded, on the application of the executors above referred to, to audit, state, and settle their accounts with the estate of their testator, and finding that a balance of $385 SO’was due to one of the legatees, rendered a decree in her favor against the executors for that sum ; and the account, thus stated, was ordered to be recorded, and the order further proceeds, “ and that said account current be received, and the vouchers filed, and that thence the said estate be finallyjsettled.”

Tho executors cannot now be called upon in the Probate Court to go into a settlement again, when all parties have reposed upon that already made for so long a period that it is fair to presume, that much of the proof which was then attainable could not now be commanded, and, in all probability, injustice would be the result.

2. In the case of Rhodes v. Turner and Wife, 21 Ala. 210, it is said, “ If a final judgment had been rendered, according to tho principles of the common law, it would be presumed to have been paid after the expiration of twenty years ; and if the partios 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 the accounts and vouchers which ordinarily enter such settlements, and which, after such a lapse of time, it would perhaps be impossible to obtain. This period of twenty years, we apprehend, would date from the time when tho administrator or executor might have been called to a final settlement of the estate.”

We have carefully examined the grounds on which the rule here suggested is founded, and are thoroughly convinced its adoption is essential to the safety and repose of executors, administrators and guardians, and to the advancement of the ends of common justice. It is strictly analogous to the rule at common law in relation to judgments, and more liberal than the rule in equity with respect to stale claims.

Let us apply it to the present case, so far as it relates to the slaves Harriet and Nelly, -whose value, and interest on that value, form the sole basis of the decree of the court below.

The slaves of the estate, so far as the executors make any return of them in their inventory, were divided by commissioners, by virtue of an order of the Orphans’ Court, among the parties in interest under th.e will of David Barnett, deceased, on the 27th of December, 1828, and we may presume that each party went into possession of his portion. The names of the slaves in controversy do not appear in the inventory, or in the list of those allotted to the several legatees. In fact, nothing is ever said of them in the record, until proof is introduced on the trial of the issue at the November term, 1852. By the will of David Barnett, the estate was subject to division on the first day of January, 1830, and from some cause, not stated in the record, the slaves were actually divided in the year 1828. — ■ Thus, nearly twenty-two years are permitted to elapse before any attempt is made to charge the executors with these slaves. A claim so stale, and unaccompanied by any proof which will tend to account for the delay in asserting it, cannot be asserted or allowed in the Orphans’ Court.

The attempt made by the defendant in 'errorgto bring about a final settlement of the estate of David Barnett, deceased, in the year 1851, in which his petition was dismissed by the court at his cost, so soon as the surviving executor appeared, cannot aid his claim. This too, was made after the expiration of twenty years, from the time fixed by the will for the distribution of the property, and at which such distribution, as well as a final settlement, could have been coerced.

Let the decree be reversed, and the cause remanded.