Moore v. Randolph's Adm'r , 70 Ala. 575 ( 1881 )

STONE, J.

Thomas O. Clark became administrator cie bonis non of*Jane Randolph’s estate, in March, 1868. She had left a will, appointing Richard Randolph to be executor thereof; who qualified, and made partial administration of her estate, but died before liis administration was completed and ready for settlement. He was brother of the testatrix, and of the beneficiaries who took chiefly under the will. The events of the war, and perhaps some looseness of administration, had left the executor’s accounts, and the affairs of the estate, somewhat complicated, and difficult of adjustment. The personal assets appear to have been entirely disposed of, in the payment of debts, in the payment of pecuniary legacies, and in partial, but unequal distribution. One pecuniary legacy remained unpaid, to meet which there had been ample personal assets, not specifically bequeathed. These personal assets, however, after the payment of debts, had been disposed of in partial distribution to the residuary legatees; and the executor’s sureties, and his own estate, were insolvent.

By the 9 th clause of the will, a large landed estate, and all the residuum of testatrix’s property, real and personal, not therein-before bequeathed and devised, were given, “to be divided equally, share and share alike,” between her brothers and sisters named, five in number. In May, 1863, the executor, Richard Randolph, filed a petition in the Probate Court, averring that said lands could not be equally divided among the devisees, share and share alike, and praying for an order to sell the same for division. The petition does not set forth that the will contains no power of sale. In September, 1863, the Probate Court granted the order of sale, as prayed for, and directed the sale to be made on one, two and three years’ time, with interest from day of sale. In making the order, the court recited that “.the case was submitted on the testimony of E. F. Hill, IT. P. Cox, and B. Avery.” There were minors interested in-the estate, and the order fails to show that the proof was made by tlie depositions of disinterested witnesses, taken as in chancery proceedings. — Code of 1876, §§ 2449, 2457, 2458.

The sale was made, October 24,1863, and the lands were bid off by two purchasers; one Spedden being the purchaser of' 1,377 acres, at $19.50 per acre; and R. C. Randolph, one .of the said five devisees, purchasing the residue, 876 acres, at $17.00’ per acre. Three notes were given by Spedden, each for the sum of $8,950.50, payable to Richard Randolph, executor; and the said Richard Randolph became one of the sureties on these three notes, payable to himself. R. C. Randolph, also, gave his three notes with surety, each for the sum of $4,964. The sale was reported to the Probate Court, and confirmed. Before the sale, it had been agreed, that Spedden should bid off the land he did purchase, and that he should let Richard Randolph, the executor, have a part, 660 acres, at the price he himself should give. This agreement was carried out, and Randolph gave Spedden his purchase-money notes, and Spedden gave him a bond to make him title. A similar agreement had been made with one Curry, as to a part of the land, and had been carried into effect; but the present case raises no question on that sub-sale. Spedden,.Richard Randolph, and Curry, severally took possession, pursuant to their several purchases, and-had not been disturbed in their possession, when Clark became administrator, in 1868. No question is here raised on the R. C. Randolph purchase.

The widow of Richard Randolph was the executrix of his will. Shortly after Clark’s appointment as administrator de bonis non of Jane Randolph’s estate, Mrs. Randolph resigned the trust of her husband's estate, and T. C. Clark was appointed; administrator de bonis non of that estate also. Mrs. Randolph,, however, at the time of, or soon after her resignation, settled the executorship of her husband on the estate of Jane Randolph ;; and a. balance was found and decreed against her, as such executrix, of some $1,290. During the administration of Richard Randolph, he had collected in Confederate treasury-notes one; each of the purchase-money notes of Spedden and R. C. Randolph, and made a partial collection on a second of the Sped-den notes. The two purchase-money notes, each, given respectively by Spedden and R. C. Randolph, and the decree against. Mrs. Randolph, executrix of Richard Randolph, mentioned above, constituted the entire assets of Jane Randolph’s estate,, which went into the hands of Clark as administrator de bonis non of Jane Randolph. The lands mentioned above, 660 acres,., of which Richard Randolph took • possession under his agreement with Spedden, Clark took possession of, as administrator de bonis non of Richard’s estate, and gave that estate the benefit of the rents for some four years — say, from 1868, until 1872. Soon after his appointment, Clark reported the estate of Richard Randolph insolvent, and it was so decreed and declared by the Probate Court. The prices at which the lands were sold by Richard Randolph in 1863, contrasted with the prices-they subsequently brought, when re-sold after the war— about five to one — would indicate that the former,sale was made on a basis of Confederate values.

It was contended in the court below, that inasmuch as Clark was administrator of each of the estates of Jane Randolph and Richard Randolph, and was in possession of the lands bought by Richard, and in receipt of the rents, he should account for those rents as assets of Jane’s estate; and having failed to do so, by accounting for them as of Richard’s estate, he should be made to account for them as for a devastavit. We may concede that, under ordinary circumstances, this should be the case; but, circumstanced as this administration and administrator were, we think there is not enough to ¡justify us in holding Clark to account for not bringing those rents into the administration of Jane Randolph’s estate. Administrators, acting in good faith, are bound, to bring to the service that degree of skill and diligence, which an ordinarily prudent man bestows on his own similar private affairs; nothing more.—Gould v. Hayes, 19 Ala. 438; Henderson v. Simmons, 33 Ala. 291; Lyon v. Foscue, 60 Ala. 468; Baldwin, v. Hatchett, 56 Ala. 561; Hutchinson v. Owen, 59 Ala. 326. When Clark took this administration upon himself, we' had but recently emerged from the convulsions of a gigantic civil war. We had been conquered, .and our political status was not well defined, or understood. In what light our judicial action during the war should be viewed, was much discussed, and was the subject of much contrariety of opinon. Able attorneys were found, who maintained that the courts which exercised authority during that -troublous time were sheer usurpations, and their decrees nullities. Even this court, as for a time constituted, held that judgments of courts of this State, rendered during the war, stood on no higher ground than' foreign judgments, and constituted mere causes of action, enforceable only by the law of comity in actions brought for the purpose.—Martin v. Hewitt, 44 Ala. 418; Bibb v. Avery, 45 Ala. 691; Griffin v. Ryland, Ib. 688.

To render Mr. Clark’s pathway still more obscure, the order of the Probate Court under which his predecessor had sold the lands, was, on its face, of questionable validity, if not void. Satcher v. Satcher, 41 Ala. 39; Bettus v. McClannahan, 52 Ala. 55. If the sale was void, then the estate of Jane Randolph could assert no lien on the land for unpaid purchaser-money. Richard Randolph was one of five devisees of the land, and, as such, was entitled to an equal possession with the •other devisees. It is no answer to this, that the devisees in interest have since ratified that sale, and thus legalized it. At the time when it is alleged Clark committed the devastavit, the sale had not been ratified. So far from this being the case, the original bill filed in this cause assailed the decree of sale as void, and prayed to have it so declared. It was only#by an amendment to the bill that the complainants ratified the sale, and prayed to have the lien for the purchase-money enforced. It is shown that, during his entire administration, Clark, the administrator, acted under and in accordance with experienced and able counsel, and there is nothing in the record to show bad faith on his part. We think the chancellor did not err in his ruling on this question.

Neither do we think the administrator betrayed a want of proper prudence or diligence in bringing the suits at law against R. O. Randolph and Spedden. Many reasons may be given for this. It may have been regarded as the simplest and most expeditious means of obtaining a judicial determination of the questioned validity of the land sale. It was probably believed that at least something could be realized on the judgment, when recovered. It may have been desirable to have the claim put in judgment for many conceivable reasons, which will readily suggest themselves to the legal mind. There is not enough in this record to enable us to affirm that the administrator is not entitled to his reasonable attorney’s fees for this service.

It is contended for appellant that, because Richard Randolph was both payor and payee of the notes given in the Spedden purchase, no judgment at law could have been rendered on these notes, and that it was either gross ignorance, or gross negligence, to bring the suits. He was payee in his representative capacity, and payor in his individual capacity. When he ceased to be the personal representative of Jane Randolph’s estate, he ceased to have any right to the note or its proceeds. The right to the note and its collection vested in Clark, when he was appointed administrator de bonis non.-Harbin v. Levi, 6 Ala. 399. We are not prepared to say the suit by Clark, administrator de bonis non, against Spedden, on these notes, should not have been maintained.—Lacy v. LeBruce, 6 Ala. 904; Willis v. Neal, 39 Ala. 464. The fact that plaintiff acquiesced in the ruling against him, and did not appeal to this court, by itself, proves nothing. He may have become convinced that a judgment at law was not necessary, or would be unproductive; or, he may have concluded the judgment he recovered against Spedden on the R. C. Randolph notes, would exhaust all the property he had. But we need not decide whether or not this suit should, or could have been maintained. It was not so clearly settled that the defense was good, as to convict counsel of gross ignorance, or gross negligence, in bringing the suit.—Goodman v. Walker, 29 Ala. 444. The administrator was entitled to reasonable compensation for bringing the suit.

It is objected that Clark, the administrator, should have had no allowance, or a smaller allowance, for defending the present suit. We think, under the circumstances shown in the record, about one-half of an ordinary fee' for defending such suit should have been allowed the administrator in his settlement. Holman v. Sims, 39 Ala. 709; Smith v. Kennard, 38 Ala. 695. The allowance in this case was about one-lialf of what the witnesses testified was reasonable compensation for the service, The register'seems to have taken a view of the case which led to the same result, and we are not inclined to disturbliis finding.

On a single question we differ with the chancellor. The present suit was against the administrator, and the land was ordered to be sold, and was sold, not in obedience to any proceeding or prayer instituted or preferred by him. He had nothing to do with the sale or conveyance, and, under the facts of this case, nothing- to do with the distribirtion of the proceeds. Under the circumstances disclosed in this record, the administrator was entitled to no commissions on that fund. This makes a difference in the allowance to the administrator on final account, rendered and stated May 18th, 1874, and confirmed by the chancellor June 24th, 1>>74, of $379.88. The excess of expenditures over receipts, as stated and allowed on that settlement, should have been $122.85, instead of $502.73-100, as reported and confirmed. On this sum the administrator is entitled to interest, from the date of the report. In all other respects, the decree of the chancellor is affirmed, and will be executed in the court below for the modified sum of $122.85, with interest, as the decree for the larger sum was ordered to be executed.

It has been objected before us, that the complainants did not except in the court below to the allowance of the item of commissions, which we have declared should not have been allowed. This objection applies only to the corrected report, which was made in precise accordance with the directions of the chancellor. This item of allowance was embraced in the original report, was then excepted to by complainants, and the exception overruled by the chancellor, who thereupon re-referred the account, with instructions to the register to correct and report it according to rules laid down by him. It does not appear that these instructions were, in any respect, disobeyed by the register. A further exception to the report, on grounds once considered and overruled by the chancellor, was unnecessary, and would possibly have been regarded as disrespectful. Harbin v. Bell, 54 Ala. 389.

The form in which the exceptions were taken and noted in this case, is somewhat open to criticism. They appear to have been taken before the register, and only noted by him in his-report. They are, however, very distinctly and specifically taken and noted. A correct practice requires they should have-been prepared by counsel, signed by him, and filed in-the Chancery Court, as a separate paper in the cause. -This was-not done by either party, so far as the record discloses the ac-, ti’on of the court on this account. The chancellor passed on the exceptions, sustained some, and overruled others; and no-objection was taken to their informal presentation, either by the court or counsel. Had the objection been taken then, the informality could, and doubtless would have been healed. . The point not being raised in. the court below, we will not consider it here. It should be noted, this case is governed by Rules 88 and *9 of Chancery Practice, as found in the Revised Code, and not by the'later Rule 93, in the Code of ,1876.

The bill in this case, as amended, prayed the removal of the administration into the.Chancery Court, and the complainants • — appellants here — can not be heard to complain that their prayer was granted. It was a proper case for chancery jurisdiction, and no steps having been taken in the Probate Court, looking to a settlement,,the legatees under the will could have the settlement removed into the Chancery Court, without assigning any special reason therefor.

Reversed on the single point stated above, and here rendered, correcting the register’s report, so as to show the excess of disbursements by the administrator, over receipts by him, was $122.85, and confirming the report as thus corrected. The Chancery Court will.proceed to enforce the decree as thus amended, to close the settlement of Clark’s administration, and make all necessary orders to that end.