Bromberg v. Bates , 112 Ala. 363 ( 1895 )

HEAD, J.

It is settled by the former decision in this case (98 Ala. 621) and by a subsequent adjudication (Baker, Admr. v. Mitchell, 109 Ala. 490), that the legatees or distributees of decedent’s estate may by bill cause the administration of the estate to be removed from the probate to the chancery court, without awaiting expiration of the six months statutory exemption of the personal representative from suit, or the eighteen months prescribed for the presentation of claims.

In bills for such removals it is not necessary that details of administration be introduced for contestation and adjustment, for such matters may be adjudicated and settled on the fi nal settlement and distribution when the estate shall become ripe for settlement. We do not say that matters of administration, properly to be involved and comprehended in the final settlement, may not arise, which are required to be determined upon pleadings and proofs. Such, for instance, as matters requiring cross bills. But, ordinary matters of detail may, without impropriety, within reasonable limitations, be brought forward in the bill for removal for special contestation and determination, upon pleadings and proofs, in advance of the final settlement. The present bill, keeping within reasonable and proper bounds, introduces matters of that character. Objections are raised to some of them, and the contention is made that because there was failure of proof as to some of such matters, the bill was not sustained and no decree could be rendered for the complainants at all. It is obvious that this contention is unsound. -Thus the executor will be chargeable with only so much of the proceeds of Hollinger’s Island as he was legally chargeable with, though the bill may have alleged that he was chargeable with more than that sum. We do not understand the decree to adjudge that he is chargeable with more than $8,500, but that he received more than that sum. If the amount received should be abated for any equitable cause, the court may allow the abatement on the final settlement. It is not disputed that Mr. Bromberg received more than $8,500 of said proceeds.

The decree is unquestionably correct in holding that the testatrix died without disposing of the Peoples Bank stock, or the Zadek mortgage, or the lot on Maryland Street or the stock in the Cedral Mining Company, and that as to all' this property she died intestate. The alleged gifts causa mortis to the executor and others, respectively, of these properties are without support in the evidence.

We have carefully examined the evidence, and without setting it out, and considering only that which is legal, hold that it abundantly sustains the finding of the chancellor, that the complainants are the heirs at law and distributees of the testatrix, entitled, as such, to the estate as to which she died intestate.

The requirement of the bond from the executor was within the power of the chancellor, and we think the circumstances justified its exercise.

The testatrix, in life, owned a piece of property called “Hollinger’s Island.” The defendant, Bromberg, was her legal adviser and acted for her, in a somewhat general way, in the management of her business affairs. In consultation with him, she concluded to sell Hollinger’s Island, and Bromberg was authorized to negotiate and conclude the sale which he did, he receiving the purchase money. It was thought to be a good investment of the proceeds, to put them in Alabama bonds, and Bromberg was authorized and instructed by Miss Rouse to make the investment for her. On the day he received the money, or the succeeding day, he left home for a season of vacation and rest in the East, and did not return until the day, - and a few hours after, Miss Rouse died ; hence the investment was not made. He, however, after his appointment of executor of Miss Rouse, did invest a large portion of said proceeds in Alabama bonds, and returned the same in his inventory as belonging to the estate.

The 7th item of Miss Rouse’s will was as follows: 1T give and bequeath to said Henry Alexander whatever Alabama State bonds I may have remaining at the time of my death, now amounting to seven in number of one thousand dollars each, and not used by my executor in the payment of my debts, funeral expenses and expenses of administration.” It is contended by said Henry Alexander, on his appeal that the instruction of Miss Rouse to her agent to invest said proceeds of Hollinger’s Island in Alabama bonds, was an equitable conversion of said proceeds into Alabama bonds, and that, in equity, she must be deemed to have died owming the bonds which the investment would have produced, had it been made ; and that said proceeds, considered as bonds, by reason of the duty of Bromberg to make the conversion, passed to him, said Alexander, by the item of the will above copied.

If it could be conceded that, had the conversion actually taken place, Alexander would have been entitled to the bonds, under said item of the will, (a concession not made), it is most clear to our minds that, under the facts, there was no element of an equitable conversion of the lands, or their proceeds, into Alabama bonds. It was nothing but a direction by the owner to her agent to invest the money in Alabama bonds, for her use, revocable by her at any moment. It was uttei’ly incapable of enforcement, in any tribunal, at the suit of any one. It was, in effect, no more than a declaration by the owner of an intention to invest the money in bonds, never carried out. The agency was never performed,' and the death, of Miss Rouse revoked it. That cannot be an equitable conversion which vests no enforceable right in any one to have the conversion actually made. There must bé a fixed, irrevocable legal right in some beneficiary, to have the investment or disposition made, and an irrevocable power and duty in the person charged with making it. In such a case,' if the party charged with the power and duty is derelict or faithless, equity will look over the default, and consider that done which ought to have been done, in determining the rights of the parties. A mere voluntary, unenforceable agency to do the thing, Revocable at any time, amounts to absolutely nothing unless and until it is done, during the continuance of the agency. As to this money, Miss Rouse died intestate.

The decree of the chancellor must be affirmed.