Steele v. Knox

ORMOND, J. Previous to the passage of the act of 1843, (Clay’s Dig. 229,) when an administrator was cited to make a settlement of his accounts, he produced his vouchers to the judge of the orphans’ court, by whom an account of the administration was stated and recorded, and forty days notice given of the day of the final settlement, that all persons interested might examine it, and come prepared if necessary to contest it. [Horn v. Grayson, 7 Porter, 273.] The act cited above has altered the law, so far as to require the administrator, or executor, when it is necessary for him to make annual or final settlements, to file in the office of the clerk of the orphans’ court, an account between himself and the estate of which he has charge, together with the vouchers; and thereupon it is made the duty of the court to appoint a day for the final settlement. It is now urged, that this account, when filed, is not open to objection unless exceptions are filed thereto in writing, at some time anterior to the final settlement, and the case of Douthitt v. Douthitt, 1 Ala, 596, is relied on as an authority for this position. The language of the court, in that case is, that “ the account would be open to exceptions in the same manner that the report of a master in chancery is,” but this was not a point necessary to be determined, or intended to be decided, and in the language just quoted, is stated merely as an analogy. It was not intended to say, that this was the exclusive mode, but merely to intimate that it was a convenient practice. Be that however as it may, it is clearly put at rest by the second section of the aot of 1843, previously referred to, which provides, that “at the time appointed in said order of publication for said settlement to be made, or so soon thereafter as the same is regularly reached, the said judge shall audit, and examine said account and vouchers, and after hearing the objections to the same, if any are made, and the evidence adduced, shall proceed to state the same, and render a decree thereon.” It is, we think, perfectly obvious, that it was the intention [613] of the legislature, that the objections to the account filed by the administrator, might be taken at the final settlement. Nor is it necessary they should be in writing, but if either party wishes to have the action of the court thereon reviewed, it will then be necessary to spread them out upon the record, together with the decision of the court upon them. If the administrator should be surprised by exceptions which he had not anticipated, and was not prepared with the necessary proof to sustain his account, the obvious remedy would be a continuance of the settlement, which, as the court meets at short intervals, would impose no particular hardship on the parties. It is further urged, that on general principles of law, the administrator had the right to carry on the plantation, and work it for the benefit of the distributees, and that if he has done so in good faith, he is only responsible for the nett profits. This is in one sense certainly an important question, but is entirely free from doubt. The personal representative does not represent the deceased, except so far as is necessary to wind up and close his business. A trade is not transmitted even to an executor, so as to enable him to carry it on, unless he has express authority by the will to do so, or is so empowered to act by a court of chancery; and if he does so act, he will be responsible to the creditors, as well as to the heirs, and the latter may take the profits, or insist on a return of the capital, and interest, at their election. [Toller on Ex. 164, 267; Wightman v. Townroe, 1 M. & S. 412; Heathcote v. Hulmer, 1 Jac. &W. 131; Ex parte Garland, 10 Vesey, 119; Barker v. Parker, 1 D. & E. 295; Ex parte Richardson, 3 Madd. C. 79.] All the rules applicable to carrying on a trade by the personal representative, apply with full force to the continuance of a plaintation by the executor; and as to an administrator it is obviously impossible at common law, as the land would descend to the heirs. When we examine our statute regulations upon this subject, we discover that the common law is recognized, and affirmed. Thus it was provided, that when one dies after the' 1st of January, the slaves which were engaged in making the crop, may be continued on the plantation during that year, and the crop will be assets in the hands of the personal represen [614] tative. [Clay’s Dig. 196, § 19.] And by the act of 1835, the power is conferred on the orphans’ court to authorize the executor, or administrator, to keep the estate together, and work it for any term not exceeding ten years. [Ib. 198, § 30.] So also when an estate is free from debt, as was the case here, it is made the duty of the judge of the orphans’ court, within three months after the estate is reported solvent, to cause distribution to be made among those entitled. [Ib. 196, $ 22.] All these provisions are utterly hostile to the pretension here set up, and we cannot doubt that the action of the administtator, in keeping the estate together, and working the slaves on the plantation, was wholly unauthorized, and that as in the case of a trade carried on by an executor, or administrator, without authority, the distributees may elect, whether they will take the profits of the business, or charge the administrator with the use of the property — and this brings us to the consideration of the manner in which the account was stated by the court. As this estate was free from debt, it was the duty of the administrator to return the fact to the court, that it might be distributed; his omission to do so, and retention of the property in his own hands for several years, was mal-adminis-tration, for the consequences of which he is chargeable. As the distributees have elected to charge him with the value of the use of the property, he must pay hire for the slaves according to the usual rates of hiring such slaves, in the customary mode during that period, and will be entitled to compensation for taking care of such as were helpless. And as he had the power to enter upon the land and rent it in virtue of the statute of 1839, he must be considered as having entered as administrater, and is therefore liable for the customary rent, in his official capacity, upon this settlement. Our statutes regulating this subject, are evidently framed upon the supposition, that there shall be no sale of the personal property of a deceased, unless there is a necessity for it, and does not give to the administrator the exclusive right to judge of the necessity, but requires him to apply to the orphans’ court for permission to sell, and authorizes the court to confer the power “ when it may be necessary.” [Clay’s Dig. 223, $ 13.] Such an order it appears was made in this [615] case, authorizing the administrator “to sell the personal property as the law directs.” It was certainly the duty of the administrator, on obtaining the order, without delay to sell the perishable property of the estate, and having failed to do so, and retained it without any justifiable cause for several years, and until it deteriorated, he is chargeable with its value at the time it should have been sold. The sale of the slave presents a question of more difficulty. Our statute evidently contemplated a division of slaves in kind, when their sale is not necessary for the payment of debts, or unless they cannot be equally distributed. But the administrator, as the representative of the deceased, may certainly sell slaves when the interest of the estate requires it; as for example, when a slave from a spirit of insubordination, was difficult of management. In such, and in other cases which might be supposed, the administrator would certainly be justified in selling slaves, though not necessary for the payment of debts. It is not however necessary to pursue this subject further, because, conceding that the slave was sold without justifiable cause, the injury to the distributees would be his value at the time of the sale, and not his estimated value, at any previous period. The inventory of the estate, which the personal representative is required to make, would certainly be evidence against him, in the absence of all other proof of the value of the property. Here it appears a return was made of the sale of the slave, there is therefore no pre-tence for a resort to the secondary evidence of his value, afforded by the inventory, and the court erred in admitting it as evidence of the value of the slave. • If the sale was justifiable^ and made in the. usual mode, the price for which the slave was actually sold, would be the measure of his value. But in no conceivable case, could he be charged beyond the actual value of the slave at the time of the sale. Let the -decree of the orphans’ court be reversed, and the cause re« manded.