Otis v. Dargan , 53 Ala. 178 ( 1875 )

BRICKELL, C. J.

A court of equity has original jurisdiction to enforce the trusts of an administration — to compel the appropriation of the assets to the payment of debts, and when these are extinguished, to the satisfaction of legacies ; or in cases of intestacy, to apply them according to the statute of distributions. Of this jurisdiction it is not divested by the statutes conferring on courts of probate, cognizance of the settlement of the accounts of executors and administrators — of the payment of legacies, making distributions, and power to render final decrees, adjudicating and determining the rights and interests of legatees and distributees, and fixing the liability of the executor or administrator. 1 Brick. Dig. 647, § 120. The jurisdiction oi the court of probate, so far as it extends, is concurrent with that of a court of equity. The present court of probate has succeeded to the jurisdiction of the former orphan’s court, and in its constitution and modes of proceeding vary but little from that court. While the orphan’s court existed, it was often declared by this court, that when having jurisdiction it had commenced proceedings for a final settlement of an administration, in the absence of an intervening equity, such proceedings could not be arrested by the interference of a court of chancery. Or, if it had proceeded to a final settlement, rendering a final decree, such decree could not be opened without allegation and proof of fraud, or some other special cause for interposition. Such decree had all the force and conclusiveness of a judgment of a court of law. King v. Smith, 15 Ala. 264.

The statute creating the courts of probate, modified to some extent this principle. It provided that courts of chancery, should on bill filed by either party, at any time within three years, correct any errors in law or fact, which may be shown to exist in any matter decided by said courts. If the error did not appear of record, it could not be corrected, except on allegation and proof that it occurred without fraud, accident or neglect on the part of the party complaining. Pamph. Acts 1849-50, p. 33, § 31. This provision was not carried into the Code, but was superseded by an enactment, declaring that “where any error of law, or fact, has occurred in the settlement of any estate of a decedent, to the injury of any party, without any fault or neglect on his part, such party may correct such error by bill in chancery, within two years after the final settlement thereof.” It. C. § 2274. The difference between the act of 1850, and the Code, is manifest. Under the former, if the error complained of appeared of record, the bill in equity for its correction was as much a matter of course, and of rig’ht, as an appeal or writ of error. It was only when the error depended on extrinsic evidence that the party complaining was bound to acquit himself of fault or neglect. The acquittal of fault or neglect, under the Code, is indispensable, whether the error complained of is apparent on the record, or is made to appear by evidence dehors the record. Unless the Code operates to bar any impeachment of a decree rendered in the court of probate, after the lapse of two years from its rendition, it does not affect or impair the general jurisdiction of a court of equity to, open such decrees because of fraud, accident or mistake. At least, it furnishes a cumulative remedy, revisory in its nature, so far as correcting errors of law, to which a party injured, who can acquit himself of fraud or neglect, is entitled. Meadows v. Edwards, 46 Ala. 354. The error of law or fact, which is sought to be corrected, must be clearly and distinctly pointed out. The certainty requisite in a bill to correct errors in a stated account, or to surcharge and falsify it, is necessary to support a bill under this statute. General allegations of error, without specifying particulars, will not avail. By proper allegations and proof, the party complaining must also show that the errors occurred without fault or neglect on his part. A general allegation of diligence, or that it was without his fault or neglect, is not sufficient. Such allegation could be made in every case, and is but an averment of the party’s own opinion or judgment, as to what he has done or omitted. It must be shown how the error occurred, and what cause prevented the party from objecting to and avoiding it when the settlement was made. Otherwise, the statute would be a mere cloak for inattention to and negligence of settlements in the courts of probate — would prolong litigation, and derogate from the value and dignity of the judgments of a court of competent jurisdiction.

If resort is had to the general jurisdiction of a court of equity, to impeach the justice of a judgment or decree, of a court of concurrent jurisdiction, or the judgments of a court of law, because of fraud in its rendition, or on facts available in opposition to the judgment or decree in the court rendering it, the party complaining must state with certainty and precision, every fact constituting the fraud, that his adversary may controvert or disprove them, if necessary; and must exclude every conclusion of fraud or negligence on his part. If relief is sought, not on allegations of fraud, but solely because of facts available in bar of the decree or judgment in the court rendering it, these facts must be stated with like certainty and precision, and it must be shown that the failure to make them available in bar of the decree or judgment, is unmixed with negligence on the part of the party complaining. French v. Garner, 7 Port. 549 : Duckworth v. Duckworth, 35 Ala. 70; Hair v. Lowe, 19 Ala. 224. Conscience, good faith, and reasonable diligence, must concur, or a court of equity is passive. A party having a complete remedy or defence, which he neglects to use and permits to be concluded by the judgment or decree of a court of competent jurisdiction, cannot reasonably ask a court of equity to cure his omission, and thereby encourage useless and expensive litigation, and incur the hazards of subverting justice. Sample v. Barnes, 14 How. 70.

Applying the principles stated to the case presented by the pleadings and proof, and the appellants were not entitled to relief. If it could be conceded the bill is sufficiently certain in its allegations — that it discloses error or fraud in the settlement had in the court of probate — it is clear all the matters complained of were cognizable in that court, and could there have been made available in bar of the decree rendered. The only excuse preferred for not making defense in that court, is the confidence reposed in the appellee, by the tenants for life and the remaindermen; and that the remainder-men (one of whom was wholly ignorant of his rights, until a short time before the filing of the bill), had no notice or knowledge of the settlement. The record of the settlement had in the court of probate, recites that the only notice thereof, required by law, was given in the mode prescribed. If this recital could in any aspect of the case be impeached, it stands now wholly uncontradicted, and to it, absolute verity must be accorded. Personal notice, by service of process requiring a party to appear, or informing him of the pendency of proceeding affecting his interests, is necessary to support only a few of the decrees of a court of probate, though such decrees operate as effectually in determining and divesting rights, as the judgments or decrees of the courts of largest jurisdiction, to the validity of which personal service of process is generally essential. The policy pervading the statutes regulating proceedings in that court, is to charge all having interests in the estates committed to its jurisdiction, with notice of its proceedings, from their inception by the grant of administration, to their conclusion by the final settlement of the executor and administrator. The whole theory of the organization of the court, is to advance a speedy settlement and distribution of estates — to avoid the delays incident to other courts, pursuing other remedies and modes of proceeding, in the form of adversary suits. In this court the proceedings are never adversary, until a party intervenes and initiates a contest. Watson v. May, 8 Ala. 177; Clemens v. Patterson, 38 Ala. 721. The statute expressly requires, where application for the probate of a will is made, that citation shall issue to, and be personally served on the heirs resident in the State. R. C. § 1951. If such notice is not given, the decree is not void, but voidable only on error or appeal. Blakey v. Blakey, 33 Ala. 611; Deslonde v. Darrington, 29 Ala. 92; Lovett v. Chisholm, 30 Ala. 88. The right of an heir becomes vested on the death of his ancestor, and the only bar to its accrual as a vested right, protected by every principle of law, protecting any other vested right, is a valid disposition by will. Denson v. Autrey, 21 Ala. 205. Yet, without personal notice to him, an instrument may be proven as the will of his ancestor’, finally concluding his right as heir, which is highly favored in the law. True, the reason generally assigned, is that the proceeding for the probate of a will is in rem. Whatever may have been the reason assigned in the ecclesiastical courts, or in the courts of the common law, for the rule, the reason applies in all its force to a proceeding for probate under our statutes. These statutes are parts of a system framed on the policy of committing the probate of wills, and the administration of estates, to a tribunal capable of conducting them to a more speedy conclusion than would be attained in other jurisdictions, confined to remedies and proceedings, of necessity, dilitory, and to charge all who have interests with notice of the court in which the administration is had. Thus charged, they are put on inquiry from the death of the person through whom they claim, and it is but seldom any l’eal injury can result to them, if they observe the diligence expected of men of ordinary prudence. Where an application for the sale of lands is made to a court of probate, notice by service of citation on the heirs resident in the State is required. Yet, though such notice is not given, and the title of the heir is divested by a sale under the decree rendered, the decree of sale is valid until reversed on error. 1 Brick. Dig. 941, § 385-6

Until 1843, there was not a statutory provision, which could even by implication be regarded, as requiring parties to be made to a final settlement of an administration in a court of probate. Mere notice by publication, that the account and vouchers had been filed, and that on a particular day the court would proceed to state, audit and allow them, was the only requisite. The notice was addressed to all parties concerned in adverse interest, without naming or describing them. Infants may have been the only parties in interest, and yet no statute required that a guardian ad litem should be appointed to represent them. It is not believed to have been the practice to appoint such guardian, and no instance can be found of a reversal of a decree of settlement, because of the failure to make such appointment, until after the act of 1843'. On the judge of the court was devolved the duty of examining and auditing the accounts, and reporting the same for allowance. Of the time at which the allowance was to be made, notice was given by advertisement. If at this time no exception was made, the accounts as stated were allowed. Aik. Dig. 182, § 27. The act of 1843, required the executor or administrator, on filing his accounts and vouchers for an annual, or final sttlement, to file with the same, on oath, a statement of the heirs or legatees, specifying which were minors, femes covert and non compos mentis. The declared object being, that the court should be informed in whose favor to render a decree, and to enable it to appoint guardians ad litem for the minor heirs and legatees, if necessary. The duty of the executor or administrator in this respect was declared official, and he and his sureties liable on his official bond for a neglect of it. Clay’s Dig. 229, § 43. So far as this statute required a statement of the heirs or legatees to be filed, it was soon after its enactment declared directory, and the omission to file such statement, not an error which would reverse a decree rendered on final settlement. Eddings v. Long, 10 Ala. 203, approved in Clack v. Clack, 20 Ala. 461. So far as it required the court to appoint a guardian ad litem for infant heirs or legatees, it was construed as mandatory, and the failure, an error which would reverse the decree rendered. Jenkins v. Jenkins 16 Ala. 693. Clack v. Clack, supra; King v. Collins, 21 Ala. 363. With this construction of the statute, it was substantially re-enacted in the Code, (11. C. §2137-45,) and the same construction has since been followed. Morgan v. Morgan, 35 Ala. 303.

The appellee on the filing his accounts and vouchers, for the final settlement now sought to be vacated, conformed to the direction of the statute, by stating in writing, under oath, the names, age, and residence of the legatees for life and in remainder. The truth of this statement is not controverted, but admitted. So far as he had authority, or any remedy by which to make them parties, he pursued it. The only notice, which the law permits, by publication was given. It fully appears, the immediate successor of the appellee in the administration, the administratrix de bonis non, had notice and participated in the settlement. If the statutes have any force — if all settlements had in a court of probate, are not to be treated as ex parte, the parties concerned in adverse interest in this administration, were parties to, and had notice of this settlement. The notice by publication, prescribed in the statutes regulating proceedings in the court of probate, has every obligatory element of the personal service of process, in the courts of common law, or courts of chancery. The constitution of these courts, the fundamental law of their organization, provides compulsory process, commanding a party to appear, under the pain and penalty of standing in contempt, if he makes default. If statutes intervene and prescribe another mode, than compulsory process, to bring him who i* personally without the territorial jurisdiction of the court, within its jurisdiction, such mode may be termed constructive notice. These phrases are not objectionable, until they are perverted. But when the only mode of notice, recognized by the law of the court, is observed, it must have full effect, or the proceedings cannot be treated as judicial and operate as such. There is no room for a distinction between such notice, and notice given in another mode, by another court— each give the notice required by the law of its constitution. The allegation that the complainants had not notice of the settlement, cannot therefore be admitted as a fact, nor any right predicated on it. They had notice — full legal notice, and are affected by it to the same extent, that they would have been, if in a court of law, they had been served with a writ or summons. But one of them denies knowledge of his rights under the will of the testator. None deny, that they knew where the testator resided, and where he died. They knew the law, that in the court of probate of the county of his residence, probate of his will must be had, if he died testate ; or if he died intestate, that court must grant administration. The probate of a will, or the grant of administration, is essentially a public proceeding, of which the world is charged with knowledge. Having this knowledge, they knew where to inquire as to the administration of the estate.

They knew that after the lapse of eighteen months from the grant of administration, the executor could make a final settlement, and surrender to the tenants for life the estate not specifically devised. Charged by law with this knowledge, and two of the complainants, Charles and Eliza Heirn, having it as a matter of fact, what prevented them from ascertaining and presenting to the court of probate, every fact, on which they now rely, to open and annul the final decree of that court ? They reposed confidence in the appellee, it is alleged ; but there is no evidence, that it was in any other degree, than such confidence as is usually extended from one person to another, in the ordinary transactions of life. The confidence, the trust, which when abused, will invoke the aid of a court of equity, is not shown to have existed, except so far as it may be deduced from the relation of executor and legatee in every case. Soon after the lapse of the life estate, they discover the facts on which this suit is founded. Within less than six months they commence suit. The tenants for life, whose testimony in reference to these facts, would be of the highest value, are dead; and of that testimony, the appellee and the court is deprived. The diligence which their deaths quickened, if exercised during their lives, it is manifest, would have furnished the complainants, all the knowledge they now possess, and on which they now proceed. The appellee and the court could have had the evidence of the tenants for life, and the right and justice of the case fully ascertained. It is not an answer to say, that the complainant’s rights did not spring up until the expiration of the life estate. They vested on the death of the testator, and were postponed in enjoyment only. They could have protected the corpus of the estate from waste, then, with as little difficulty, and by the same title, on which they can now reduce it to possession. It is the corpus only, to which they can lay claim. The income and profits, belonged to the tenants for life, and it is not material to the complainants whether they were wasted or not.

It is, we think, certain that two of the complainants, Charles and Eliza Heirn, had knowledge of this settlement, distinct from, and independent of that which the law must impute from the decree of the court, and the proceedings on which it was founded. Prior to the settlement and preparatory to it, an administrator de bonis non was appointed, the appellee having resigned as executor. They became the sureties on the bond of the administratrix de bonis non. It is possible, but not probable, that they may have been ignorant of the fact of settlement. The reasonable conclusion is, that they knew the appointment and qualification of the administratrix de bonis non, was forthe purpose of the settlement. Having thus the actual knowledge of the settlement, which is so prominently insisted on in some of the authorities to which we have been referred, what excuse can be preferred for their failure to inquire into it, and avail themselves of the facts they now press to avoid it ? The executor had resigned, the administration was not complete, for a successor to him had been appointed, and he was seeking a final settlement which was to be a final discharge of his liability. These facts certainly were sufficient, if they had ordinary care for their interest to put them on inquiry. If they did not inquire, but acquiesed in the settlement, they can not now be heard to say, if error of law or fact occurred, that it was without their fault or neglect. They surely neglected to inquire, or to take any step to prevent such error from intervening. "Whether they base their right to relief on the statute, or on the general jurisdiction of a court of equity, their negligence is a bar. Allman v. Owen, 31 Ala. 167. If they are barred, the chancellor did not err in dismissing the bill, on the familiar principle in a court of equity, when two or more join as complainants, all must be entitled to relief, or the suit is not maintainable. Hardeman, v. Sims, 3 Ala. 747 ; Wilkins v. Judge, 14 Ala. 135; Plant v. Voegelin, 30 Ala. 160; Vaughn v. Lovejoy, 34 Ala. 437.

Nor can it be admitted the complainant Cornelia, has, either by allegation or proof, acquitted herself of fault or neglect. The allegation is, “the said Cornelia did not know at that time, (the time of the settlement,) and until a short time before the filing of this bill, that she had any interest in said estate, or of the administration of the same by the defendant.” This is a simple, general averment of ignorance of her rights. It is not a negation of facts, or of notice or knowledge of facts, which would have put a man of ordinary prudence, and ought to have put her on inquiry as to her rights. It is not a denial of knowledge that the appellee was executor, administering the estate of the testator. It is not a denial of knowledge of her relation to the testator — of his residence and death — of the fact that he had an estate, which must by operation of law, descend to his heirs, or be distributed to his next of kin, if he died intestate, or devolve under his will if he died testate. It is not a denial of the fact that she bore a relation to him, which made her his next of kin, or if he died testate, a probable recipient of his bounty. Having knowledge of these facts, she was singularly supine, if she never made inquiry, and her supineness is negligence. An allegation not materially different from this, was declared by this court in Martin v. Br. Bank Decatur, 31 Ala. 122, wholly insufficient as a negation of a want of knowledge of facts, which ought to have put a party on inqiiiry, and would have charged him with knowledge of the facts, of which he preferred ignorance.

We prefer to rest the affirmance of the decree of the chancellor, on the proposition, that the settlement in the court of probate, is a bar to the relief sought by the bill. If errors intervened, in that settlement, the complainants have not shown that it was without fault or neglect on their part; that they did not in that court, avoid such errors. The power*, of the court were ample, and of them, the complainants could have had full benefit. A court of equity refusing to interpose in such case, proceeds upon the highest and most conservative public policy. A judgment or decree of a court of competent jurisdiction, must be, except under extraordinary circumstances, an end of litigation. Truth, justice, the peace of families, and the repose of society, demand this dignity shall be awarded to it. The parties litigant must be diligent in asserting their rights or submit to have them concluded, by a tribunal having capacity to adjudge them. If from the operation of the rule occasional injustice is wrought, or fraud accomplished, it is the result of the negligence, of the party injured. It is better he should bear the loss, than the value of judgments should be impaired.

It is due to the appellee, to say, the evidence fully vindicates him from all fraud, or intentional error, or from any dereliction of duty as executor. An error crept into his accounts, to which his attention was not called, nor its correction claimed, until the bill was filed. It could result in but a small balance against him, which he by his answer offered to pay, and would doubtless have paid without suit, on being informed of it.

The decree is affirmed.

MANNING, J., not sitting, having been of counsel for appellee.