Cook v. Cook , 69 Ala. 294 ( 1881 )

SOMEBYILLE, J.

Every executor or administrator is required by law to make annual settlements of his administration,, and “ may, when necessary for the interests of the estate, be required to make a settlement at any time.” — Code, 1816, § 2508. And after the lapse of eighteen months from the grant of letters, if all the debts are paid, “ and the condition of the estate, in other respects, will admit of it,” a final settlement may be required, either at the instance of those interested, or ex mew motu, by the action of the court. After citation served upon an executor or administrator to this end, requiring him to file-his accounts and vouchers, and to make settlement, he may be-compelled by attachment to obey the order of the court, or the-judge of probate may proceed to state an account against him.. Code, §§ 2528, 2524, 2525; Hooper v. Smith, 57 Ala. 557; 1 Brick. Dig. p. 981, §§ 950 et seq.

The jurisdiction of the probate court in this case did not,, therefore, depend on the petition of the appellees to compel the appellant, who was their co-executor, to make a settlement, of his executorship.

John Cook, the appellant, was properly, chargeable with the money deposited with him, or in his custody, by the testator during his life. "When a debtor of an estate, or of a testator,, takes out letters testamentary or of administration, the presumption of payment at once arises, without regard, to the solvency of the debtor so appointed, or the duration of his administration. — Miller v. Irby’s Adm’r, 63 Ala. 477; Wright v. Lang, 66 Ala. 389.

There was no authority, however, to enter a decree in favor of the co-executors against the appellant. The only case where a decree is authorized in favor of one personal representative against another, is where there is a removal, a resignation or revocation of the letters of an executor or administrator, or his authority ceases for any cause; in such case a decree may be rendered in favor of a remaining or succeeding executor or administrator. — Code, §§ 2590-91.. The court erred in not rendering the decree in favor of the several devisees or legatees under the will. — Code, §§ 2530, 2475.

Reversed and remanded.