Cox's Adm'r v. McKinney , 32 Ala. 461 ( 1858 )

WALKER, J.

The legacy created by the wjj.ll of John Cox, in favor of Scriven Cox, was certainly a vested, not a contingent legacy. — Savage v. Benham, 17 Ala. 127; McLemore v. McLemore, 8 Ala. 690; McLeod v. McDonald, 6 Ala. 236; Travis v. Morrison, 28 Ala. 494; Nixon v. Robbins, 24 Ala. 663.

[2.] The division of the slaves betwreen Scriven Cox and her brother (Robert S. Cox) by the executor, and his subsequent uniform admission that the shares into which the slaves wrnre thus divided belonged respectively to Scriven and Robert S. Cox, authorize the implication of the executor’s assent to the legacy. — Thompson v. Schmidt, 3 Hill’s (S. C.) R. 156; 1 Roper on Legacies, 568.

[3.] The legacy being assented to, it might have been recovered in an action at law by the legatee, when the period of payment according to the will arrived. The legatee having died, the same action at law maybe maintained by her representative after the period of payment. 2 Williams on Executors, 1198-1199. As this suit was commenced long after the time of payment, it is not requisite that we should decide whether the action at law could have been maintained before such time of payment.

[4.] The division of slaves, made by the executor, between Scriven and Robert S. Cox, was not void. It was assented to by the only persons interested; and it was competent for the executor to make a division with their assent, and by them approved, before the time appointed by the will for the division. — Rocke v. Rocke, 9 Beav. 66; Josselyn v. Josselyn, 9 Sim. 63; 2 Williams on Ex’rs, 1199-1200. The division would not be absolutely void .011 aceount of the infancy of those assenting to it. It would only be voidable, under the law as held at this day. — Weaver v. Jones, 24 Ala. 420; Slaughter v. Cunningham, 24 Ala. 260. The case of Johnson v. Cul-breath, 19 Ala. 348, is unlike this, in two particulars: 1st, in that case, the bequest directed that, if any of the children should die before attaining majority, the division should be made among the others, so that it could not be ascertained who would take the legacies until the time appointed for the division should arrive; and 2d, in that case, the Regatee who was in his minority at the time of the division dissented upon attaining majority, and filed a. bill in chancery for relief against it. Here, the persons who are to take are ascertained, and there is no act or word by the representatives of the infants designed to avoid the division.

[5.] For these reasons we should hold, that the court erred in its charge, if the complaint were adapted to the cause of action made by the proof. But the complaint is by the appellant as an individual, while the proof only conduces to show title in him as an administrator. For this reason, we are constrained to hold, that there was no error in the charge of the court.

[6.] The evidence introduced by the defendant, to show that there were no debts against the estate of plaintiff’s intestate, and that the administration was obtained and the suit brought for the benefit of Mrs. McCaa and Mrs. Jones, two of the distributees of the estate of plaintiff’s intestate, was certainly illegal. It was totally irrelevant to the question on trial.

[7.] If it be conceded, that the conduct of some of the distributees amounted to an estoppel in favor of the defendant, so as to operate a transfer of their interest to him, it would bo no defense in this action; because the interest of the distributees is purely equitable, and the transfer by them to the defendant would be no defense to a suit at law by the administrator.

[8.] For the error in the admission of evidence above noticed, the judgment of the court below is reversed, and the cause remanded. Notwithstanding it may be clear that tbe plaintiff cannot recover upon the complaint, as it now stands, we cannot say, upon the whole record, that he cannot recover after an amendment of the complaint. Williams v. Agee, 30 Ala. 636; Crimm v. Crawford, 29 Ala. 623.