Julian v. Reynolds

ORMOND, J. The rule is the same in a court of chancery, as at law, that to entitle a party to relief, the allegations and proof must correspond, and that relief can no more be granted on proof without the necessary allegations putting such facts [in issue, than upon allegations without proof. Clements v. Kellogg, 1 Ala. 330, and in previous, as well as subsequent cases, the same doctrine has been stated and enforced. The relief is sought in this bill, upon the allegation, that Mary Mosely, one of the administrators of the estate purchas [964] ed a number of the slaves of the estate, with the assets of the estate, and has converted them to her own use, and conveyed the pi by deed of gift to two of her children. The proof is, that sheilpurchased them at the sale, designing at the time to purchase only the amount of the distributive shares, of herself, and the four minor children in the estate ; that she made no payment whatever on account of her purchase, but executed her note for the amount of the purchase money to her co-administrator. It is very obvious that the case made by the bill, and the facts as disclosed by the proof, are entirely dissimilar. The bill is filed on the assumption that the slaves are still the property of the estate — that as trust property they may be followed into the hands of a purchaser with notice, or of a mere volunteer, as the donees here are alledged to be, and that the distributees may demand an account of it, as property belonging to the estate. The proof shows that the slaves are not the property of the estate, but the individual property of Mrs. Mosel y, and that she is a debtor to the estate to the amount of her purchase, if she has not discharged it by the payment of debts due by the estate, or in satisfying the claims of the distributees. There is nothing in the proof from which it can be inferred, that the purchase was not made in good faith, and. is not such as would be supported; even if the purpose of the bill was to set it aside. There is not, according to repeated decisions of this court, any objection to such a purchase by a personal representative, such as Mrs. Mosely was, with an interest, if made Iona fide, and we cannot assume that the law on this subject, is different in South-Carolina, from our own, as was held in this case at a former term.— [Julian v. Reynolds, 8 Ala. 683.] It would then, be a sufficient reason for repudiating this bill, that it is wholly unsupported by proofs of its allegations, but it is open to another objection quite as formidable. The bill discloses a case of equitable Cognizance every where, where the trust property might be found, and it might be added, exclusively cognizable in equity. But the proof shows, that the courts of this state could not take jurisdiction of this subject, but that the probate court of South-Carolina, is the [965] appropriate forum in which the estate should be settled. In King v. Calhoun, 5 Ala. 523, a bill in chancery was sustained, where administration had been commenced upon an estate in Georgia, and the property of the estate, in specie, al-ledged to be brought into this state, and in imminent danger of being wasted, as the administrator was dead, and the property about -to be sold for the payment of his individual debts. We held that chancery might interpose to prevent the destruction of the fund, and having possession of the case for one purpose, might retain it for all purposes, make a final settlement of the administrator’s account, and decree distribution. The fund here in the hands of Mrs. Mosely, is the amount she will be found iudebted to the estate, upon the settlement of her administraiion in South Carolina, and after receiving a credit for the sums she may have paid to the several distri-butees. If this fund being in this state, were in danger of being lost, possibly a court of chancery might interfere. But that fund, whatever it may be, is not only not ascertained, it does not appear to be in any danger. An attempt was made, by an amendment to the bill, to show that the slaves supposed to be trust property, were in danger of being removed from this state, but the chancellor very properly refused an injunction, considering the causes alledged insufficient. It may be added, that it appears that the sureties to the administration bond, are amply sufficient to ensure the collection of the fund, which may yet remain in the hands of the administra-trix, if it were shown that she is not herself able to respond. [Treadwell v. Rainey, 9 Ala. 593; Story on Confl. of L. 432, § 16, and cases there cited.] These considerations, as they are decisive'of the case, render it improper to enter upon the enquiry, whether J. Mosely, a defendant to the bill, the witness by whom the complainant established the facts, was competent, under the circumstances, to testify. The bill must be dismissed, but without prejudice to any suit the complainants may hereafter institute to recover their distributive shares, of their father’s estate.