Hall v. Heirs of Wilson

CHILTON, J. 1. By the act of 1843-4, (see acts, p. 56,) it is made the duty of the judge of the orphans’'court when he is interested as a party, or as counsel, or related to the litigants to transmit the papers with a transcript of the record to the chancery court, &c. When the cause is thus transferred, the chancellor takes it in the condition in which he finds it — applies to it the law applicable to settlements in the orphans’ court, but proceeds according to the practice of his — 299 — own court. Taliaferro v. Brown, 11 Ala. Rep. 702. So that it was not necessary for the chancellor, as contended by the counsel for the plaintiff in error, to have gone back to the commencement of the case in the orphans’ court, disregarding what had been done previous to the transfer. 2. Neither can we regard the proceeding as void because of the relationship of the judge to one of the parties. The parties appeared before him, and made no objection to his sitting upon the case, and must be regarded as consenting to his competency to act. It seems that the judge in this case, on his own motion, ordered the cause to the chancery court. No objection whatever was taken upon this ground. The scarcity of judicial decisions upon the question of incompetency from relationship, is evidence of the delicacy which judges feel in sitting in any case where there can be the possibility of doubt as to the existence of any bias. Becquit v. Lempriere, 1 Knapp’s Rep. 376. Such was the prudent jealousy of our ancestors, in ancient times, that by positive enactment (4 Edw. 3, c. 2; 8 Rich. 2, c. 2,) judges could not then hold court in the county in which they were born, or which they inhabited. These statutes were however repealed, when the liberal confidence of a more enlightened age obtained. 12 Geo. 2, c. 2; 49 Geo. 3, c. 91; see also, 3 Chit. Geni. Pr. 9. But it is manifest the spirit of our statutes merely require the mind of the court to be free from all imputation of bias, from such consideration, and too great caution cannot be observed by the judges upon a question so delicate. 3 Chit. Pr. 9, note L. 3. Upon the subject of the interést of the parties, complainants, we think the decree of the chancellor is wholly indefensible. It is true, the administrator himself is required, when he files his accounts and vouchers for final settlement, to specify the heirs and legatees, &c., on oath, and this the plaintiff in error failed to do; (Dig. 129 § 43;) but he had the right upon the final settlement, to object that the persons claiming to be the heirs, had not propounded their interest to the court, and to require them to do so by filing an exceptive allegation. Watson and wife v. May, 8 Ala. Rep. 177. There is not a particle of evidence to show, that the complainants in the bill are the heirs of Peter Wilson, deceased. The orphans’ — 300 — court minutes merely recite, “ that they petitioned by their attorneys to be made heirs to the settlement of the estate,” and it was ordered that their petition be filed, and that said petitioners be permitted to appear as parties to the said settlement. Th'e petition is not shown in the record, nor is it even shown that it was verified by affidavit. The record does not disclose that there was any evidence submitted of the fact before the judge of the orphans’ court, and as their interest is directly put in issue by the bill and answer, we think it incumbent on the complainants below to have proved their right to the property as the heirs of the intestate. It is contended however, that the plaintiff in error waived such proof, by permitting the orphans’ court to render a final decree allowing the account against him, by his default. We do not consider that the decree spoken of was final, as respects the interest of the respective distributees. It appears that the court having failed, after repeated efforts, to procure the attendance of the administrator, proceeded to state an account according to the act of 1843, (Dig. 230, § 48,) charging the plaintiff in error with the sum of $1,776 76, and crediting him with judge’s and clerk’s fees, $13 89, and it was then ordered, that a citation issue, requiring the administrator to appear at the nest term, and file his accounts and vouchers, or “the account so stated would be reported for allowance, and settled as required by law,” &c. At the February term, 1845, the complainants were allowed to be made parties, in the absence of the administrator, and without notice to him, upon the petition of their attorney, an alias citation was ordered to issue to the administrator to file his accounts, &c.; no citation appears in the record, but at the April term, 1845, the administrator (as the order recites,) having been cited to file his accounts, &c., and having failed to do so, it was ordered and decreed by the court, that the account thus stated by the judge, and on file in the court, be reported for allowance by the court on the third Saturday of June next thereafter, and publication for forty days was ordered to be made in the Gazette, for all persons interested to come forward and contest the same. The cause having been continued until the July berm, ’45 of the orphans’ court, the complainants in the bill, “ claiming to be the heirs of Peter — 301 — Wilson, deceased, and distributees of his estate, came by attorney, and the administrator by his attorney, and the said heirs moved the court to decree the allowance of the account heretofore stated by the court; the administrator objected to the motion, that the whole proceeding was irregular, and should be vacated, and moved to be dismissed with his cost; “ because, 1st, for irregularities upon the record ; 2d, that no assets had come to his hands as administrator of said estate; and, 3d, that no judgment can, or ought to be rendered against him because there was no one properly before the court in whose favor judgment could be rendered, and that the parties heretofore admitted, and claiming to be the heirs of said Wilson, are not his heirs, and are not in anywise interested in litigating the final settlement-.” The complainants in the bill demurred to this allegation of the administrator, which demurrer was sustained, and the administrator then filed his affidavit, stating that no assets whatever had come to his hands as administrator of said estate, and consequently he had no account to file. That he had paid an account of Druislla Thompson for $90, which he attached, and $13 89, as per the order of the court, and he prayed the court to set aside the proceedings stating the account, &c. This motion was resisted on several grounds, and the judge, without deciding upon it, transferred the cause to the chancery court. Now it is most obvious, there was no final decree in the orphans’ court, nor any allowance of the account stated by the court, and reported to be allowed on final settlement. The defendants in error moved for its allowance to them, as heirs and distributees, and pending this motion, the jurisdiction of the chancery court attached by reason of the transfer. The account stated by the court was open to exception, upon the final settlement, in the same manner that the report of a master in chancery is; (Douthitt v. Douthitt, 1 Ala. R. 594; Parks v. Stonum, 8 Ib. 756:) and although we regard the showing made by the administrator, who had obstinately stood out in contempt of the authority of the court, and refused not only to file his accounts and vouchers when required, but also to show cause, when cited, against reporting this — 302 — account for allowance, as wholly insufficient to open the 'account, yet the orphans’ court, in rendering the final decree, must have such evidence before it as to the persons entitled to distribution, as will enable that court to comply with the statute, which enacts, “ the county courts, on final settlements of executors, administrators and guardians, shall assess, and insert in their decree, the amount of their [the heirs or devisees share.” Dig. 305, § 44. If the administrator had appeared, and raised no objection in the court below to the claims of the defendants in error, and a final decree had been made, he could not be allowed, for the first time, to make the question here. But he did object in the orphans’ court, and re-asserts his objections in chancery, and as the chancellor must adopt the rules of law in his decree which are applicable to the final settlement and decree in the orphans’ court, (Taliaferro v. Brown, supra,) it follows he should have required evidence of the right of complainants below to distribution, and should in the final decree have adjudged to each his appropriate share. Allowing, that in a proper case, the decree which omits to partition the fund could be amended in this court, it cannot be done where the record, as in the case before us, furnishes no data upon which to predicate an amendment. * 4. The objection that the administrator was allowed nothing by way of commissions, cannot be allowed to prevail. True, it is the constant practice to allow reasonable compensation to executors and administrators, but the court may, and should, refuse compensation where they are guilty of wilful default, or gross negligence, in the management of the estate, which occasions loss to the parties entitled to it. Powell et al. v. Powell, 10 Ala. Rep. 900. Besides, the plaintiff in error, by his default, submitted that the judge of the orphans’ court should state the amount which he, in violation of duty, and in contempt of the mandate of the court, refused to furnish. As he has taken the chances for an account too favorable to himself, he should not, in the absence of all intervening equitable consideration, be allowed afterwards to — 303 — say it was not favorable enough, and thus speculate upon the chances. The chancellor very properly refused to open the account, but for the error we have noticed, the decree is reversed, and the cause remanded.