Glover v. Hill , 85 Ala. 41 ( 1887 )

CLOPTON, J.

— Tbe bill is filed by George W. Hill, as sole surviving heir and distributee, against tbe sureties on tbe administration bond of William J. Bennett, who is also deceased, and seeks a settlement of bis administration of tbe estate of Bird Hill, who died intestate. There are cross appeals.

Tbe register reported that there were no valid claims outstanding against tbe estate of Bird Hill, and bis report was not excepted to in tbis respect. All bis debts having been paid, or presumed to be paid, or barred, no administration duties remained, but a settlement and distribution of tbe estate. There is no necessity of an administrator de bonis non. Harrison Hill, tbe only heir and distributee other than complainant, died while a minor, owing no debts, and leaving complainant bis sole heir. As, in such case, tbe only office of administration would be distribution, a court of equity will not put complainant to tbe unnecessary costs and expenses of an administration. A personal representative of neither Bird Hill nor Harrison Hill is a necessary party. Baines v. Barnes, 64 Ala. 375; Alexander v. Alexander, 70 Ala. 212; Fretwell v. McLemore, 52 Ala. 124.

2. Appellee insists, that tbe court should not consider tbe rulings on appellants’ exceptions to tbe report of tbe register, which were overruled by tbe chancellor, there being no assignments of error based specially on such rulings. Appellants’ only remaining assignment of error goes to the decree generally, without specifying any particular provisions, but the decree includes the rulings on the exceptions to the report. In the settlement of administrations, especially when the liability of sureties is involved, we are not disposed to pass unnoticed rulings on exceptions to the report of the register, if error has intervened in stating the account, when there is a general assignment of error in the decree, the correctness of which is necessarily affected, though there may be no assignment based specially on such rulings.

3. The statute provides, that when an estate of a deceased person is solvent, and there are minors entitled to distribution therein, who have no legal guardian, it shall be lawful for the administrator to defray, out of the assets of the estate, the necessary and reasonable expenses for the maintenance and education of such minors; and upon the final settlement he shall be allowed credit for such expenses, to be charged against the share of such minors, and deducted therefrom on any distribution of the estate. — Code, 1876, ^ 2644. The evidence satisfies us, that complainant and his brother, Harrison Hill, had no means of maintenance and education other than what was received from the administrator, and that they lived with him, except during the time they were in Arkansas, or temporarily at other places. The defendants were entitled to, and should have received, credit for the reasonable value of their board during the time they lived with the administrator.

4. The original appraisement of the estate was introduced in evidence by complainant, without objection. It haying been lost or mislaid during the progress of the reference, a certified transcript thereof was offered in evidence, to which defendants objected. The specified ground of objection is, that it is secondary evidence, and that no sufficient predicate was laid for its introduction. All other objections to its admissibility are considered as waived If it be regarded as secondary evidence, a sufficient predicate was laid, when it was shown that the original was lost or mislaid. But we do not so regard it. The appraisement is returned to the Probate Court, and there recorded and kept on file. Under the statute, a certified copy is presumptive evidence, and has the same effect as if the original were produced and proved. Code, 1876, § 3047.

5. The appraisement of an estate, being an ex-parte statement of third persons, may not be evidence against the administrator, unless lie connects bimself with it in some way. The petition for the sale of the personal property states, that the estate had been duly appraised, and the appraisement returned to court. This was a'sufficient adoption of it as his inventory, it not being shown that any other inventory was returned, to make it prima facie evidence against his sureties, of the assets of the estate, for which the administrator is responsible. The appraisement shows that there were 890 bushels of corn more than were reported sold. No attempt was made to show any mistake in the appraisement, and no account was given of the disposition of the corn. The defendants should have been charged with its reasonable value.

6. In deciding appeals from the Chancery Court, we are required to weigh the evidence, giving no weight to the decision of the facts by the chancellor, and give such judgment as we deem just. — Code, § 675. . Having regard to the requirements and policy of the statute, and as all parties should desire that this litigation be not protracted, with increased expenses, longer than may be necessary to do substantial justice, we have examined the proof with a view to determine what judgment should, under the circumstances, be deemed just. While it is impracticable to ascertain with definiteness and exactness the length of time, during wddeh the complainant and his brother lived with the administrator, and the amount which should be allowed for their board, we may reasonably conclude from the whole evidence, that a proper allowance for board would be approximately an equivalent of the sum with which defendants should be charged for the corn unaccounted for. Therefore, the errors above mentioned may be set off against each other, and neither regarded in taking the account. — Lyon v. Foscue, (50 Ala. 468. It satisfactorily appears from the evidence, that a settlement was made between the administrator and complainant, in October, 1879, before the latter went to Texas, where he has remained ever since. It is true, this settlement does not bind him, being then a minor, and he has a right to have a full and fair settlement of the administration. The administrator is dead, many years have elapsed, and the means of proving the disbursements on account of the estate and the distributees are necessarily diminished. Under these circumstances, the settlement, the complainant’s contemporaneous declarations, and his subsequent admissions, are entitled to consideration and weight in the endeavor to reach a right conclusion. The facts and circumstances authorize the inference, that complainant, by way of advances for his and his brother’s maintenance and education, and otherwise, had at that time received the portion of the personal assets of the estate, in the hands of the administrator, to which he was entitled as then ascertained by them. This conclusion is supported by ■ its correspondence with the report of the register, as to the difference between the amount of the personal property received by the administrator, and the aggregate of the items of his disbursements on account of the distributees, as ascertained by him, when an allowance for board is added. The surplus of the proceeds of the land sold under the mortgage made by Bird Hill was not accounted for to the administrator, and did not go into his hands. The defendants admit that they are chargeable with the amount of the surplus. The difference between this amount, with interest thereon, and the sum decreed by the chancellor, is small, only a few dollars.

On the whole record and evidence, it appears to us that the result of the decree is substantially right, and it is therefore affirmed, on both the original and cross appeals.

Affirmed.