Hemphill v. Moody , 64 Ala. 468 ( 1879 )

STONE, J.

It is a maxim, born of necessity, that all men are conclusively presumed to know the law. Without this, legal accountability could not be enforced, and judicial administration would be embarrassed at every step. The necessity of this rule is more felt and acknowledged in criminal accountability, than in mere civil obligations. As a corollary, there has grown up another maxim, that courts will not reform or redress those acts of parties, which are the result of pure mistake of law. — Jones v. Watkins, 1 Stew. 81; Trustees v. Keller, 1 Ala. 406; Haden v. Ware, 15 Ala. 149; Dill v. Shahan, 25 Ala. 694; Town Council of Cahaba v. Burnett, 34 Ala. 400; Lesslie v. Richardson, 60 Ala. 563. But, in.civil proceedings, this rule, owing to its.hardship, has been treated as one stricti juris; and if there was intermixed with the mistake of law, any mistake of fact, courts have willingly seized upon it, and made it the ground of relief. There is a class of cases, hard to distinguish from mistakes of law, where, through mistake, a written agreement contains substantially more or less than the parties intended, or where, from ignorance or want of skill in the draughtsman, the object and intention of the parties, as contemplated by the agreement, is not expressed in the written instrument, by reason of the use of inapt expressions ; in which the Court of Chancery, on clear and satisfactory proof of the mistake, will reform such agreement, and make it conform to the true intention of the contracting parties. — 1 Brick. Dig. (381, §|606,610. The principle on which courts relieve, in cases falling within this class, is that through ignorance, or misapprehension of the legal effect of the terms agreed upon, the parties have made a contract, variant in legal construction from the one intended.— Trapp v. Moore, 21 Ala. 693; Larkins v. Biddle, Ib. 252. We refer to this class of cases, not because they shed any direct light on the case in hand, but because they show that courts seize upon small circumstances, to relieve parties of a hard, though necessary rule. And there are other cases in which this rule is relaxed. — Hardigree v. Mitchum, 51 Ala. 151.

In the present case, Moody, the administrator of Sims, paid to the administrator of Aaron Ready two thousand dollars, the sum of a pecuniary legacy bequeathed by the' will of Sims. In the case of Hemphill v. Moody, we held this payment'was unauthorized, and that Moody was not entitled to a credit for it in his settlement as administrator of Sims. One purpose of the present bill is to have that payment applied to the extinguishment of the distributive interest of Aaron Ready’s children in said estate. The averments of the bill are, that the children of Aaron Ready and the children of Jerusha Ready, his wife, daughter and legatee of testator Sims, are the same; that they are insolvent; that the two thousand dollars, paid by mistake to Aaron Ready’s administrator, were distributed and paid, less expenses of administration, to said children of-Aaron and Jerusha Ready ; that in this way they, the children — distributees alike of Aaron and Jerusha Ready — have received of the moneys of complainant more than their share of the undistributed assets of the estate of testator Sims, and that it is contrary to equity and good conscience that they should again receive payment out of the private purse of complainant Moody. The answer, if we were allowed to look to it, denies that the children of Aaron Ready, and the children of Jerusha Ready, are entirely the same; sets up, that after the death of Jerusha Ready, Aaron married a second time, and left issue by the second marriage, who shared in the distribution of the two thousand dollars, paid to lieady’s administrator. In the present state of the record, and on the present appeal, w'e can not know or inquire how this question stands. Only the averments of the bill are before us. Taking those averments as a guide, the share of the undistributed assets of testator’s estate, to which Mrs. Beady’s administratrix is entitled, is eleven or twelve hundred dollars. There is no averment in the bill showing the amount of the two thousand dollars distributed and paid to the distributees of Aaron Beady, which went to the distributees of Jerusha Beady. Guided, however, by the bill, the sum distributed and paid to them exceeds the distributive share of Jerusha Beady’s estate in the undistributed assets. The bill avers that Jerusha Beady died many years ago ; that her estate owes no debts, and that the only function and duty her administratrix will be required to perform, is the distribution of her intestate’s distributive share among her distributees, next of kin.

2. We do not think this case, so far as it seeks relief against Jerusha Beady’s distributees, stands on the naked principle of. a suit to recover back money paid under a mistake of law. The bill makes no effort to recover the money back. Its object is, to have a payment, actually made, applied in extinguishment or reduction of a debt or liability actually due and owing. Guided, as we have said, by the averments of the bill, Moody, the complainant, was liable to pay — was indebted — to Jerusha Beady’s estate, to be distributed and paid to her next of kin, eleven or twelve hundred dollars ; no more. He has paid, and they have received a larger sum than that, to which they had no other rightful claim. They can not demand a second payment,' on the technical ground that, when the payment was made, it was erroneously supposed to be due on another account. Payment discharges a debt, no matter when, or by whom made.

3-4. The will of Mr. Sims was probated in 1840. Mary J. Sims, one of the legatees, intermarried with Hemphill in 1846, before the enactment of any of our statutes securing to married women their separate estates. The fund in controversy accrued to the several claimants, legatees, under the will, or by descent; and, unless there be peculiar circumstances in this case, taking it out of the operation of the general rule, our statutes known as the ‘woman’s law’ having nothing to do with the case. — Kidd v. Montague, 19 Ala. 619. The will gives to Sarah Sims, widow of testator, real and personal property, to have, use and enjoy, during the term of her natural life or widowhood. She entered upon the enjoyment of the property, lived thirty-three or thirty-four years, without marrying a second time, and died in 1874. The will makes disposition of the remainder of the property as follows : “ If she (said Sarah) should marry, or die, then, and in that case, it is my will that all the property I have left her should be sold, on one, two, and three years’ credit, with interest after one year.” Testator then makes a very humane provision for the private sale of the slaves, thus given to his wife for life or widowhood, “ to those they are willing to go to, regardless of price, and not to be parted from their husbands and wives and children, in no event whatever.” The will gives no direction for the disposition or distribution of the proceeds of the property thus given to the widow, and ordered, as above shown, to be sold, after the termination of her estate, on one, two, and three years’ credit. Our reasons for this assertion are, that, with the exception of a few pecuniary legacies, the will is made up entirely of specific devises and bequests, with this residuary clause inserted .subsequent to the direction for a sale, above copied, and near the close of the will as first drawn, namely: “ The balance of my property which is not given away in this will, I wish sold to the highest bidder, on a credit of one, two, three, four, five, or six years, with interest from day of sale, . . . and then to be equally divided between my above-named children.” The property first directed to be sold — the residue of the title after the termination of the wife’s estate- — is to be sold on one, two, and three years’ credit, and not a word said about the disposition of the proceeds. In the residuary clause, after prescribing other and different terms of sale, it is added, “ then to be equally divided between my above-named children.”

5. It has been often and uniformly held in this State, that if, by the terms of the will, a life-estate, or other estate less than an absolute title, is given to one, with remainder on its termination to another, the assent of the executor to the life-estate is an assent to tire estate in remainder, and divests all title to the property out of testator’s estate. This is, as to such property, complete administration ; and the possession of the life-tenant is the possession of the remainder-man, if it be what is called a vested remainder. Hence, before the enactment of the “woman’s law,” if a feme, owner in remainder of a chattel then in the possession of a tenant for life, took husband, the marital rights of the husband attached eo instanti ; for the possession of the tenant for life was the possession of the remainder-man. — Magee v. Toland, 8 Por. 36; Pitts v. Curtis, 4 Ala. 350; Broome v. King, 10 Ala. 819; Chambers v. Perry, 17 Ala. 726; Gibson v. Land, 17 Ala. 117’ Walker v. Fenner, 28 Ala. 367.

6. The present ease stands on different facts. The will gave to the widow, during life or widowhood, real and personal property, to be enjoyed by her in its then form, without change or conversion. In the lands she took a defeasible freehold estate. The personal property perished during the continuance of the particular estate, and left only the land at the time of her death. The will, by directing a sale of the land at the termination of the particular estate, converted it, at that time, into money. — 1 Jarm. on Wills, ed.Jjy Perkins, 477, marg. 524. This principle rests on the doctrine of intention. “ It is presumed that the parties, in directing money to be invested in land, or land to be turned into money, intend that the property shall assume the very character of the property into which it is to be converted, whatever may be the manner in which that direction is given.” 1 Sfco. Eq. Ju. § 791. We have, then, the case of a devise of realty during the tenancy of the first taker, converted into personalty at the termination of the particular estate. If we were to apply the doctrine, that the possession of the life-tenant is the possession of the remainder-man, what would be the result? The possession of Mrs. Sims was that of a freeholder in lands; making that the possession of Mrs. Hemp-hill, if she takes in remainder, then, according to the rules of the common law, Hemphill, her husband, by virtue of his marriage, became seized of tbe estate for the life of his wife, raised to an estate for his own life as tenant by the curtesy, if there was issue of the marriage born alive. — Cheek v. Waldrum, 25 Ala. 152; Bishop v. Blair, 36 Ala. 80; Bibb v. McKinley, 9 Por. 636. This would have the effect of declaring that the seizin, by which realty is held, defines the rule by which personalty shall be owned and possessed; for the lands, as we have shown, became personalty at the death of Mrs. Sims. Kegarded as land, Hemphill, the husband, could, at most, claim a life-estate ; as personalty, the absolute property would be his. — 2 Brick. Dig. 72, §51. There are two insurmountable obstacles to applying the doctrine invoked in this case: First, the possession of the tenant of the particular estate cannot be the possession of the remainder-man, if the will created one ; second, the will creates no estate in remainder.

7. There being no testamentary disposition of the residuum of the estate given to Mrs. Sims during her life or widowhood, it follows that, as to the proceeds of the land, 'the testator died intestate. The property then reverts to the estate of the testator, for farther and complete administration by his personal representative. The fund in controversy in this case was a vested interest, owned by Mrs. Hemphill at the time of her marriage in 1846, and is a chose in action belonging to the wife, governed by the rules of the common law as to the husband’s marital right to reduce it to possession, and thus become the owner of it. This may never happen. He may not live to recover it. He may elect not to assert his marital rights over it. It is the right of the wife, or of some friend for her, to require a settlement to be made on her by her husband, before he obtains possession of her distributive interest. — Kidd v. Montague, supra; 1 Bright on H. & W. 18, 48, 74, 82-3. Hemphill, the husband, had and has no such ownership or interest in his wife’s distributive share in this fund, as enables him to release it without valuable consideration, or to estop her from asserting her right to it, by any act, agreement, or admission of his. The present bill shows no right to equitable relief against Mrs. Hemphill, or any other parties standing in the same relation to the estate which she occupies.

8. It is certainly true, that when, by reason of its limited powers, the Probate Court is unable to do complete justice in the settlement of administrations, the personal representative, or any other party in interest, may, at any stage of the proceedings before final decree, invoke the larger powers of the Chancery Court, and have the settlement removed to, and made in that court. — 1 Brick. Dig. 647, § 120; McNeill v. McNeill, 36 Ala. 109; Hatchett v. Billingslea, at the present term. But this rule only obtains where there are trusts, or other grounds of equitable relief, which precede or enter into the settlement itself. The rule, which is itself exceptional when invoked by the personal representative, can have no application, in a case like the present, where the ouly ground on which the jurisdiction is rested, is a mistake committed by the personal representative, and the only relief he can claim is to have a payment heretofore made applied to the extinguishment of one of the distributive interests. This exerts no influence whatever in the matter of making the final settlement, and becomes important only in having the decree in favor of the Ready distributive interest entered satisfied. The bill, so far as it seeks to remove the settlement of Moody’s administration into the Chancery Court, and so far as it prayed and obtained an injunction, restraining the completion of settlement in the Probate Court, is without equity.

In one aspect, this bill, with proper amendments, and with proper parties, is not without equity. We have shown that, if the distributees of Jerusha Ready have been paid the money, in whole or in part, which Moody by mistake paid to Aaron Beady’s administrator, then, to the extent they have been so paid, they should not be paid a second time. If they were parties, distributees, to the settlement' in the Probate Court, that court has ample power to hear and determine the question of such payment, and to decree to them a smaller sum, or nothing, as the proof might show they had been partially or wholly paid.— Wilson v. Randall, 37 Ala. 74. But that is not this case. The payment was made to Aaron Beady’s administrator, and, according to the averments of the bill, distributed and paid by him to the distributees of Aaron Beady, who are also distributees of Jerusha Beady. The distributive share in the present settlement is due and payable to the personal representative of Jerusha Beady’s estate, for administration and distribution by her. If, as the bill avers, the estate of Jerusha Beady owes no debts, and the fund when received, less expenses of administration, will be for distribution among the same persons who have been paid as distributees of Aaron Beady’s estate, out of said two thousand dollars, then the Probate Court, by reason of its limited powers, has not the requisite jurisdiction to bring the necessary parties before it, take the accounts, and grant the proper relief. Only the Chancery Court can do this ; and to enable it to enter upon the inquiry, and grant the relief, the personal representative and distributees of Jerusha Beady are necessary parties defendant. In such proceeding, the solvency vel non of such distributees is an immaterial inquiry.

The decree of the chancellor is reversed, and a decree here rendered, sustaining the demurrer to every feature of the bill, except that which seeks relief against the personal representative and distributees of Jerusha Beady ; and to that extent, the bill is retained. The injunction against proceeding with the settlement in the Probate Court is dissolved. Let the costs of appeal in this court, and in the court below, be paid by the appellee.