Clark v. Hughes , 71 Ala. 163 ( 1881 )

STONE, J.

The rulings in the case of Clark v. Knox, 70 Ala. 607, settle the principle that when an administrator, without sufficient cause, delays final settlement and distribution for an unreasonable time, he thereby incurs a liability to the legatees or 'distributees, for the damage he, in that way, inflicts on them, although he may, all the while, have safely kept the money unproductive and unemployed, and although he-may make the statutory, exculpatory oath. The reason on which this ruling rests is, that it is the duty of the administrator to make settlement and distribute the assets, as binding on him as any other duty the statute casts upon him. It is his duty to become the actor in such proceeding. It is no excuse for him that the distributees might have moved against him, and thus coerced a settlement. Such motion, in its very nature, implies dereliction on the part of the administrator. A claim by a debtor that he shall not be charged .interest on his debt past due, because he had all the while held the money, but the creditor had not sued for it, would present a seemingly parallel case. The damages such administrator is adjudged to pay, is not interest as %nterest. We adopt the statutory rate of interest, as the best, if not the only practicable measure of damages the nature of the question admits of. That is the rate for withholding money due, and this is but the withholding of money due.

'But interest should not be computed from the day the assets are reduced to money, and thus made ready for distribution. "When, as in this case, the statutory oath is taken, and it is not controverted successfully, a reasonable time should be allowed the administrator to make preparation for, and consummate a settlement. What is a reasonable time -must depend, in large measure, on the facts of each particular ease. Some settlements are much more complicated than others, in the facts or legal principles involved; and 'due-regard should be had to these, in determining what is a reasonable time, in any given case. Some settlements can be made only in the chancery court, by reason of conflicting relations of the administrator, or other necessity for the .exercise of chancery powers.-Tankersly v. Pettis, 61 Ala. 354, and authorities>cited. There must be reasonable time allowed for arrangement of materials, and for conference with counsel, preliminary to filing the account current for settlement, or bill in chancery, as the questions to be decided may require. Then a reasonable time must be allowed for conducting the proceeding to final decree. What should be considered a reasonable time, would be the time consumed by an ordinarily prudent man, in commencing and carrying through a litigation of similar character, he had previoiisly determined to institute. The particular court, whether probate or chancery, becomes a factor in this inquiry. The latter court has much longer vacations than the former, and, in general routine, a settlement in chancery requires more time for its completion than would be required in the probate court.

The chancellor, in his decree, alludes to the fact that the lands of Mrs. Cawfield’s estate were sold, not for the payment of debts, but for partition or distribution. He says the administrator might have made his settlement earlier, if he had not proceeded to sell the lands, and thus allowed them to devolve undivided upon the heirs. The statute expressly authorizes the sale of lands for division, when they “can not be equitably divided amongst the heirs or devisees.” And the executor or administrator must make the application. — Code of 1876, §§ 2449, 2450. The bill complains of no irregularity in the proceedings which resulted in the sale. The order of sale could not have been obtained, without satisfactory proof that the lands could not be equitably divided between the heirs. In the sale of the lands, the administrator did only what the statute authorized him to do, and in the absence even of averment, that a sale was not necessary to effect an equitable division, Ave must presume good faith in this act of administration, and hold that it shall exert no influence prejudicial to the administrator, in the matter of damages or interest with which he is charged.

The record shows that the last installment of the land-purchase Avas paid before March 1st, 1874, but we are not informed how long before. Till that payment was made, the estate was not in condition to be settled. We take that as the date from which it became ■ the duty of the administrator to take steps looking to a settlement. The settlement in this case could only be made in the chancery court.-Hays v. Cockrell, 41 Ala. 75. The defendants necessary to be made to a bill by the administrator were non-residents, and it would require longer time to perfect service on them. Making reasonable allowance for the accidental delays of litigation, we think eighteen months a sufficient time for instituting and carrying such suit, in this case, to a final determination. Making the affidavit he did, and that not controverted, tbe charge of interest against the administrator should have commenced, September 1, 1875.

Reversed and remanded.