Vincent v. Daniel , 59 Ala. 602 ( 1877 )

BRICKELL, C. J.—

The statutes with clearness and precision prescribe the method of compelling a negligent or refractory executor or administrator to a settlement of his administration, and there is no difficulty in pursuing it. If' pursued, the j udge of probate by a simple recital of the facts on the record will sustain the regularity of the proceedings. The court may ex mero motu, and it is indeed its duty to proceed to compel such settlement, when from its records, it appears there is a delinquent executor or administrator. If it proceeds on the application of a party complaining, it should appear he has cause of complaint—that he is not a mere interloper, putting his fingers in other people’s messes. These proceedings seem to have been commenced on the application of Daniel, stating only that he was interested in the estate; but how ho had an interest, or how acquired, or any fact showing his interest is not stated. The court should not on such an application have made any order, or issued any process. This is however a mere irregularity, not important as the case now stands and we refer to it, for no other purpose than to remind judges of probate, of the necessity and impoi’tance of not entertaining such applications unless they distinctly disclose the nature and character of the interest of the party making them. Daniel doubtless has an interest in the estate, which would authorize him to invoke the compulsory process of the court of probate, against the appellant, and it was due to any orderly proceeding in a court of record, that it should have been distinctly stated.—Spence v. Savery, 25 Ala. 723.

The mode of proceeding which the statutes authorize, is a citation to the executor or administrator, who is in default to appear and file his accounts and vouchers, and make settlement. If he fails to obey the citation, he stands in contempt, and the court may proceed against him by attachment,, or-may proceed to state an account against him. The latter, is the course pursued in the present case, and having been pursued, it was the duty of the court after stating the account to issue a further citation notifying the appellant to appear and file his accounts and vouchers for settlement, or that the penalty of his failure was the passing of the account the court had stated against him, and the rendition of decree thereon.—Code of 1876, §§ 2524, 2527; R. C. §§2153, 2156. The executor or administrator has however the right to a vacation of the proceedings, if at any time before final settlement, he appears and files his accounts and vouchers for settlement and pays the costs of the previous proceedings.

The court of probate in rendering, a final decree against the appellant on the day the account against him was stated; fell into an error. Though the appellant was present, and had refused to file his accounts and vouchers and make settlement, he was entitled to a further day to examine the account stated against him by the court. Or to a further day, at which he could purge himself of all contempt, pay the costs caused by his delinquency, and submitting to the jurisdiction of the court, file his accounts and vouchers for a settlement. The proceedings were ex parte as to the appellant, and the statutes intend that he should have full opportunity to relieve himself from them, and become as he ought to be the actor for a final settlement of his administration.

In addition, the proceedings are painfully irregular. Some of these irregularities would not furnish a ground of reversal, and some would be corrected by amendment in this court, the record furnishing the proper evidence. It is apparent Daniel and Savage, each have probably interests as assignees of some of the heirs or distributees of the estate. This appearing the court should have required them to propound .their respective interests, of which notice should have been given to the appellant and to those whose interest they claim. If it appeared either was the assignee of the integral share of an heir or distributee, entitled to a decree, then in his favor for such share a decree should be rendered.— Graham v. Abercrombie, 8 Ala. 562; Petty v. Wofford, 11 Ala. 143; Smith v. Hall, 20 Ala. 777; Simmons v. Knight, 35 Ala. 105. If a married woman is an heir or distributee, a decree should be rendered in the name of husband and wife for the use of the wife.—1 Brick. Dig. 833. The name- of each heir or distributee should be distinctly stated, and for the shares of infants there is no authority to decree in favor of a guardian ad litem. If the infant has no general guardian the decree should be in his own name; but if he has such guardian, then in his own name by such guardian.

The decree is reversed and the cause remanded.