Duckworth v. Duckworth's Adm'r , 35 Ala. 70 ( 1859 )

R. W. WALKER, J.

1. If the demands set up by the complainants against the estate of Randall Duckworth, jr., could have been allowed on their final settlement in the probate court, in reduijtion of his distributive share in his father’s estate, the bill is without equity ; for no rule is better established, than that a court of chancery will not relieve in regard to a matter as to which the complainant could have had redress in a previous litigation, unless he was prevented from obtaining it by accident,’ fraud, or the act of the opposite party, unmixed with fault or negligence on his part. — Hair & Labuzan v. Lowe, 19 Ala. 224.

2. But, if it be conceded that the probate court had no jurisdiction to give the complainants the benefit of these demands, on the final settlement, by deducting them from the amount of the distributive share of Randall Duckworth, jr., still, we think that this bill is not so framed as to show that the complainants are entitled to relief.

It is obvious that, if the complainants can claim relief at all, it must be upon one or the other of the followihg grounds:

First, That on their final settlement they were charged with, and accounted for, the amounts due from Randall Duckworth, jr., and tliat the probate court had no power to allow these amounts as sets-ofF against the latter’s distributive share of the money'in their hands.

Second, That the complainants wore not charged with these amounts on their final settlement — but that Bandall Duckworth, jr., was himself one of the executors; that he has never made a final settlement of his accounts as executor; that he was liable as such to the creditors and distributees of his father’s estate, for the amounts received by him from his co-executors; that the complainants, being his sureties on his bond, are also responsible therefor ; and that, his administrator being a non-resident, they have the right to protect themselves by the retention of the amount for which they are thus liable, until they are discharged from responsibility on his account.

"Without stopping to consider the correctness of the foregoing as legal propositions, we are satisfied that this bill does not sufficiently aver the facts'involved in either of them.

It is a cardinal rule,- founded iu reason and good sense, that the bill should state the title or claim of the complainant with accuracy and clearness, and with such certainty that the defendant may be distinctly informed of the nature of the case which he is called upon to meet. If the facts essential to the right of the complainant are not clearly and unambiguously alleged, the defect will bo fatal; for no facts are properly in issue, unless charged in the bill, and no proof can be made of, or relief granted for facts not charged. — Story’s Eq. Pl. §§ 242, et seq.; 1 Daniell’s Ch. Pr. 411, et seq ; Cockrell v. Gurley, 26 Ala. 405 ; Spence v. Duren, 3 Ala. 251.

To justify relief upon the first of the two grounds just mentioned, the bill should aver positively, that the complainants had been charged, on their final settlement in the probate court, with the several amounts which they claim from the estate of Eandall-Duckworth, jr. There is no positive and direct allegation that this was the fact; and for this reason, if for no other, the bill is fatally defective, if it is to be considered as seeking relief upon the ground here referred to.

In like maimer, its allegations are altogether too vague and uncertain to authorize relief upon the second ground above mentioned. It is not distinctly averred, that the complainants were not charged, on their settlement in the probate court, with the amounts due from Eandall Duck-worth, jr.; nor is there a clear and positive allegation that the latter had not made a final settlement of his accounts as executor, (which would have discharged the complainants from liability as his sureties;) or that there were any unsatisfied creditors of the estate of Eandall Duckworth, sr., to whom the complainants could ever be made liable, for the amounts due from their co-executor ; nor that the latter was not in fact the sole distributee of his father’s estate. It is true that some, if not all of these facts, might be inferred from other statements in the bill; but the matters essential to the complainant’s right to relief must appear, not by inference, but by direct and unambiguous averment.

The bill seems to proceed entirely upon the ground, that the complainants have the right to set off these demands against the decree in favor of the defendant as administrator of Eandall Duckworth, jr., because they were prevented from having this done on their settlement in the probate court, by the advice of their counsel, who told them that it could as well be done afterwards. Considered in this aspect, it is wholly without equity; and if it is to be treated as seeking relief upon any other ground, its allegations are so vague and uncertain, that they fail to establish the existence of any specific equity which the complainants can call upon the court to enforce.

Decree affirmed.