Smith's Distributees v. King

GIBBONS, J. The first assignment of error does not 'bring to our notice its subject matter in such a manner that we can here regard it. There seems to have been no exception taken to the ruling of the court below; and in such cases, the rule of this court is, not to revise the decisions of the inferior tribunals upon facts, unless the objection is made at the time of the decision, and this is made to appear by bill of exceptions, or otherwise by the record. Gordon et al. v. McLeod, 20 Ala. 242. In refusing to charge the defendant with the rent of the lands, as shown in the bill of exceptions, we think the court erred. We see no reason why he should not be called to account for those rents, as well as for any other assets in his hands; for assets they undoubtedly were. If he used and cultivated the lands, for his own benefit, he was clearly chargeable with reasonable rent for them; and for the years that he rented them out, the nett proceeds belonged to the distributees, as much as any other funds in his hands derived from the estate. We presume that the court below based its decision upon the idea, that inasmuch as the lands descended to the heirs, and the administration having commenced prior to the passage of the act of 1839, authorizing administrators to rent out the lands of estates, therefore these rents were not assets of the estate. It is true, the act of 1839 cannot have a retrospective operation; and in the case of an administration of an estate of an intestate commencing before the passage of the act, the decision of the court would have been correct. 562 Phillips v. Gray, Adm’r, 1 Ala. 226; Leavens v. Butler, 8 Porter 380; Terry v. Ferguson, ib. 500; Smith’s Heirs v. Smith’s Adm’r, 13 Ala. 329; Bondurant, Adm’r, v. Thompson’s Distributees, 15 Ala. 202. These decisions go upon the ground, that the Orphans’ or Probate Court has no jurisdiction to render a judgment against the administrator for any thing that is not assets in his hands. But the case at bar is an administration with the will annexed; and by the terms of the will, the executors are required to keep the whole estate, real and personal, together, until the youngest son becomes of age. The executors are directed to disburse the income, so far as it may be necessary for the maintenance and support of the family, and the overplus, if any, to apply to the increase of the estate. A division could not take place until 1845, when the youngest son became of age. Although the title to the lands under the will vested in the heirs at the death of the testator, the possession and enjoyment of them was postponed, and given in trust to the executors. It was the duty of the administrator to make final settlement and divide the estate in 1845, when the youngest son became of age; until that time, he was directed to hold the estate; and, unquestionably, all that he received up to that time from the lands were properly charged to him. This is not denied. His default in making final settlement, cannot alter the character of his tenure of the estate, so far as his liability is concerned, nor prevent the rents received by him from being assets in his hands. The court acquires its jurisdiction to charge him with the rents, not from the act of 1889, or from any other statute authorizing him to rent or take possession of the lands, but by the will of the testator, making the lands, and the rents and profits thereof, assets in his hands. The case of Martin v. Williams, 18 Ala. 193, and the other cases cited upon the brief of the defendant’s counsel, are not supposed to have any application to this case. For the errors above noted, the judgment of the court below is reversed, and the cause remanded.