Duffee v. Buchanan

ORMOND, J. We consider the true construction of the will to be, that the mother and the two sisters, took each one-third part of the estate. The language is, “ shall be equally divided between my mother and my two sisters, Harriet and Mary.” If the term equally had been omitted, there might have been some plausibility in the argument, that it was intended to create two classes of beneficiaries. In a subsequent clause of the will, the same idea is conveyed, in language admitting of no doubt, where it is said, “ My mother and sisters above named, [31] shall receive the amount of a debt due me,” &c. The plain import of the will is, that his mother and sisters were to be equally interested in his estate, and it would b.e doing great injustice, to change this natural interpretation of the whole will, by a criticism upon a particular word,especially in a case where the will being nuncupative, was reduced to writing after the testator’s death. In such a case, we must give effect to what appears to have been the prevailing idea, in the testator’s mind. In respect to the note due by the administrator, to the deceased, there can be no doubt, he was properly chargeable with it as money. It was assets in his hands for collection and distribution, and as he could not sue himself, it was properly considered as cash in his hands. [Childress v. Childress, 3 Ala. Rep. 754.] The note due by McGuire, stands upon a different footing. As a general rule, executors and administrators are not chargeable with notes remaining in their hands as money; though certainly they may subject themselves to account for them, as assets, upon proof of neglect or mismanagement. [Douthitt, Administrator, v. Douthitt, 1 Ala. Rep. 597.] In this case, the administrator having had possession of the estate for about ten years, appears in obedience to the citation, and submits an account for final settlement; upon the final settlement, the Court, “ upon the proof adduced,” being satisfied that he was correctly chargeable with the amount of the note due from McGuire, decrees against him. If there was no evidence authorizing this decree, it should have been shown by an exception. In the absence of any objection, we must presume, either that it was shown that the money had been collected, or that it was lost by the neglect of the administrator, who was entitled to its custody, and upon whom the law devolved the duty of collecting it. The record, it is true, does not show, that the administrator was present when the final settlement was made, nor is it important whether he attended or not. He is one of the parties in the cause, and having appeared in obedience to the citation, is affected with notice of all the ulterior proceedings, of which, indeed, the record states due notice was given. We are unable to perceive any error in the decree of the Court, and it is therefore affirmed.