Crothers v. Heirs of Ross

CHILTON, J. In Clarke v. West, 5 Ala. 117, it was said, “ the consequence of a report of insolvency is to make the administrator an actor in the proceeding's.' The action' of the court is invoked by the administrator, and he is bound to take notice of' all subsequent proceedings, until the closing of the estate by a final decree of settlement and distribution.” So, in Williamson et al. v. Hill, 6 Port. Rep. 184, it,was remarked, “ that it was' not for the plaintiffs to' object to the irregularity of notice, which was not intended for the benefit of the personal representative, but for the benefit of creditors, distributees, &c. [821] The same principle was ruled in Duffee, adm’r, v. Buchanan & Wife, 8 Ala. 27, where the administrator, who. appeared in obedience to a citation and presented his accounts and vouchers for final settlement, was held to be one of the parties to the settlement, and affected with notice of all the ulterior proceedings. So, also, in Boggs, adm’r, v. The Br. Bank, Mobile, 12 Ala. 494-497, it is said, “ the administrator, in legal contemplation, was in court from the initiation to the close of the proceeding,” &c. These several decisions have been acquiesced in and acted on so long, that we could not at this late period depart from them, if we were disposed to question their propriety, without doing manifest injustice to many suitors who, reposing upon them, have proceeded according to the law as established by them. It has become the settled construction of the statute to • treat the administrator, who reports the estate insolvent, as the actor, and to charge him with notice of the subsequent proceedings had in the matter of the estate! The law contemplates a continuous proceeding from the time of the report of the insolvency by the administrator, down to the time of final settlement of the estate, and as the administrator is presumed to have notice, we must consider the case as. though he was present at the final settlement. This conclusion deprives him of the benefit of urging as grounds of reversal in this court, such objections as would be considered waived by his presence at the final settlement, and failure to except to the ruling of the court. In Logan v. Logan, 13 Ala. 653, the Orphans’ Court, on the final settlement, allowed the widow to participate in advancements made to the children, and which they brought into hatch jjot. No formal exception was taken to the allowance in that court, and it was here insisted that the objection must be considered as waived, but we then said, “the fact is explicitly shown upon the record in the decree by which the intestate’s estate is distributed and the 'administration settled; and this being so, we have repeatedly held that no formal exception was necessary to authorise the appellate court to revise an error apparent in the final action of the Orphans’ Court.” This decision is in point, we think, to show that the exclusion of the widow in the decree before us, from any participation in the distribution of the estate, being shown by the record, must be looked to in th'e absence of any formal exception. [822] It is insisted, however, that he assignment of errors does not raise this objection — that the assignment is that no “ dower1,1 is reserved to the widow in the final distribution, &c. We know that ordinarily, as the term is understood in its common law acceptation, it means the interest which the widow lakes in her husband’s lands, and does not apply to his personal property, but rn the Civil law the term is not thus restricted. So, also, in the laws of Louisiana. It is impossible to mistake the meaning of the counsel, as to the sense in which he designed the word should be taken, and we are unwilling to interpose the technical objection, so as to prejudice the party, but must consider the assignment as presenting for our revision the exclusion of the wife from any participation in the distribution of the estate. But it is further insisted that the record shows that the persons, to whom the decree distributes the estate, are the sole distributees, and that we must intend this recital was predicated upon sufficient evidence — that we must intend, either that the widow had departed this life, or had transfered, if she was not dead, her interest to the heirs. In the previous examination of this case, we thought this an answer to the assignment, but on further reflection, we are satisfied, it cannot be supported. The petition filed against the administrator describes the petitioners, as “the children and sole heirs at law” of Jack F. Ross, deceased ; there is no averment of the death of the widow, or that she has assigned to them-her interest. But this is immaterial; forif she were dead at the time of the settlement, her personal representative was a necessary party to the decree. In Boyett v. Kerr, 7 Ala. 9, it was held that in order to make a valid decree for the final settlement of an estate, every party entitled to distribution must be brought in some way before the court, and that if a person entitled die before such decree is rendered, it is necessary that his personal representative be brought in before the decree is made final. We need’ not consider the effect of a transfer by the widow to the children of her interest. The record recites that the defendants in error are the sole distributees. This recital is certainly not correct if the widow is living; for the law declares that she shall share in the distribution of the surplus remaining, after the payment of debts, &c. — Clay’s Dig. 191, § 1. The record shows that she was appointed adminisUatrix and afterwards resigned, and no where shows her [823] death, or any other fact which would authorise her exclusion. Inasmuch then as she is affirmatively shown to be entitled to share in the estate, if a surplus remains, and nothing is shown why the court did not decree to her the share which the statute allows, we must regard the recital in the record, that the children of the said Jack F. Ross are the sole distributees, as the assertion of an erroneous legal proposition. But it is further said, that the administrator should not be heard to say that the widow is entitled to share in the distribution, since the statute requires him to file, with his accounts and vouchers for final settlement, a statement containing a list of the “heirs and legatees,” that the court may be advised as to the persons among whom distribution is required to be made. This Act does not cure this error, conceding ,th^t .the widow is embraced in it; the statute affixes the penalty upon the administrator, to be recovered by those injuriously affected by his failure to comply, and without now deciding what we should hold, were the administrator attempting to reverse because the rights of a distributee, whom the administrator- failed to designate and who was unknown to t.he court, or whose interest did npt appear of record, were overlooked or disregarded, we think, that, as the widow in this case was before the court as administratrix, her bond then on file, as also her resignation and the order thereupon made of record in the cause, a statement by the administrator, as to her, if required in any case by the statute, was not here necessary. It would only have advised the court of what was already shown by the record, and at most would have been supererogatory. — See 10 Ala. 503. Upon the whole, the record excludes the widow and shows no reason for such exclusion. It shows wh.o she is, and raises the presumption of her being in life when the final decree was rendered, and of her interest in the estate, which is not rebutted by any other part of the proceedings, as-they appear before us. The administrator is furnished by the record of the proceedings with no estoppel as against her, and has thus been injured by the decree. For this error the decree must be reversed. As to the other points raised in the argument, and presented by the assignment of errors, we deem it unnecessary to express an opinion, as the case must go back and will no doubt assume a different aspect, when both parties shall have an opportunity [824] of presenting the facts and circumstances attending it, and their respective claims predicated upon them. Let the decree be reversed and the cause remanded. Dargan, C. J., not sitting.