Carroll v. Richardson , 87 Ala. 605 ( 1888 )

STONE, C. J.

These two suits refer to the estate of J. T. Perry, deceased. Mr. Perry left a will and codicil, each of which was proven and established as his last will and testament; and Richardson, one of the executors named in the will, qualified as such, and took upon himself the execution of the trust. The other two did not qualify.

The suit stated first above was instituted probably in less than six months after the probate of the will, J. M. Carroll being the complainant. The records fail to furnish the date when either bill was filed. Whether this be so or not, it is manifest that each of the bills was filed in much less than eighteen months after the probate of the will.

When a personal representative of a decedent’s will or estate is appointed and qualifies, the result is, that the title to all personal effects of the estate, including dioses in action, vests immediately in him, and that title relates back to, and takes effect from decedent’s death. — 1 Brick. Dig. 932, §§ 262, 264; 3 Ib. 463, § 130. It then becomes his duty to possess' himself of all personal effects, that he may pay the debts, and perform the other functions of administration. Until the expiration of eighteen months after the appointment of a personal representative, the law does not impute to him a knowledge of the condition of the estate as to solvency or insolvency. Till then he can not be coerced to pay, or assent to a legacy. — Code of 1886, § 2192, and note. In the case of Jackson v. Powell, at present term, we said: “Eighteen months are allowed after administration granted, for presenting or filing claims against decedents’ estates; and a settlement can not be coerced until after the expiration of eighteen months (Code of 1886, §§ 2134, 2192), unless the executor or administrator becomes satisfied before that time that the estate is solvent, and so reports; in which event he may obtain an order of distribution as to the whole, or any part of the property.” — Code of 1886, § 2191. See Upchurch v. Norsworthy, 12 Ala. 532.

There was a demurrer to Carroll’s bill, which the chancellor overruled. There is no appeal from that ruling, and it neither is, nor can be assigned as error. Consequently, the sufficiency of that bill is not ■ directly before us for review. Richardson answered Carroll’s bill, and, under our statute, made his answer a cross-bill. To that cross-bill Carroll filed a demurrer, which the' chancellor overruled. That ruling is assigned as error. A cross-bill is defensive in its nature and purpose; and if the original bill fails, the cross-bill, as a rule, has nothing to accomplish, and fails with it. We will not consider the sufficiency of the cross-bill, for, under the principles we have declared, Carroll’s bill is without equity, and the demurrer to it ought to have been sustained. There is in this ruling no error of which appellant can complain.

There is not enough before us — indeed, facts are not sufficiently developed — to enable us to determine absolutely what course the executor ought to pursue in reference to the merchandise. It is clear that Carroll can not claim their delivery to him, either with or without security for his faithful administration of the trust. The executor should, as far as safety and the payment of the debts will permit, respect the wishes of the testator in the matter of the specific devises, bequests, and pecuniary legacies; for, next to the law of the land, the will is a law to him. The merchandise is probably perishable, and in any event would deteriorate in value, if kept on hands unreasonably. Much must be confided to the executor’s discretion; while, if he acts recklessly, or in bad faith, and thereby injures the estate, he will render himself liable for the abuse. We know not how to be more definite on this subject.

Following pretty closely the foregoing suit, as we infer, came the bill of J. C. Richardson, as executor, stated second at the head of this opinion. That bill makes all the devisees and legatees under Perry’s will parties defendant. The object and prayer of the bill, as amended, are two-fold: First, to obtain an interpretation of the will, and directions of the court in its administration; and, second, to have the administration removed into the Chancery Court. There was a demurrer to this bill- by Carroll, which the chancellor overruled.

We hold that this bill, in each of its aspects, contains equity. The will itself, including the codicil, presents several questions of disputable solution, on which different legal minds might well differ. And it is shown that Mrs. Rothenhoffer .and Carroll differ in the interpretation of the will, in the assertion of the interests they severally claim thereunder. And the question may arise, whether the codicil does not create a precatory trust, in favor of Mrs. Kelley and Mrs. Carroll; and on the other hand, whether the language is not too uncertain to authorize relief. —Jones v. McPhillips, 82 Ala. 102; 3 Pom. Eq. §§ 1156-7; McRee v. McRee, 34 Ala. 349; Hollingsworth v. Hollingsworth, 65 Ala. 321; Cowles v. Pollard, 51 Ala. 445. It is not our intention to express or intimate any opinion as to the proper interpretation of any clause of the will. The question of rightful interpretation, or rightful directions, is not before us. The chancellor has declared no interpretation, and has given no directions. He has simply decided that the bill makes a case calling for interpretation and direction, and from that decretal order the present appeal is prosecuted. There is no error in his rulings.

Affirmed.