Weaver's Ex'rs v. Weaver's Creditors

CHILTON, C. J. This case was before us at a previous term, and the facts will substantially appear in the statement of it as reported in 20 Ala. 557- It was then held, that the order of the Probate Court, requiring the parties to proceed to a settlement with the executors under the law as it existed prior to the passage of the act of 1843, and disregarding the provisions of this act, was erroneous, and the cause for that reason was reversed and remanded. 1. In the certificate of reversal sent down by the clerk of this court, it was certified “ that the records and proceedings of said [793] court, in a certain final settlement of the estate of George I. Weaver, deceased, wherein, by said court, at the August term, 1851, it was considered, that in the case of George Steele, creditor, and the executors of the estate of Geo. I. Weaver, a decree was rendered requiring the executors to settle up before the court would hear the contest among the several credir tors upon the objections filed, which, being brought before the Supreme Court, by appeal,” &c., C{ was reversed, annulled, &c.” The counsel for the executors insisted in the court below, and here contend, that the effect of this certificate was, a direction to the Probate Court to proceed and test the validity of the claims of the creditors before making a settlement with the executors. But we do not think this construction of the certificate can be supported. The clerk merely refers to the decree or order of the Probate Court, and copies so much of it as he deems necessary to identify it and show what decree it was which this court set aside. The object of the certificate is accomplished, when the primary court is thus informed of the action which this court has taken upon its judgment or decree. The reasons for the reversal, and the course indicated as a guide for the primary tribunal, will usually be found in the opinion delivered in the cause, a copy of which the law requires the clerk to transmit under his certificate to the court below; but these constitute no portion of the judgment entry, upon which his certificate is predicated. The ground of reversal in this case, when previously here, was not that the court required the executors to settle before the creditors’ contests were tried, but that it required them to settle at all, in the posture of the case as then presented; for the record showed that the act of 1848 had not been complied with, by giving the proper notice. 2. We have duly considered the argument of the counsel for the plaintiffs in error, in opposition to giving to the act of 1843 a retrospective operation, so as to make it apply to estates which had been reported insolvent prior to its passage, and were the question an open one in this court, we should be strongly inclined to restrict its operation to estates reported insolvent after the statute took effect; but the contrary construction has been too firmly established, by numerous decisions of this court, now to be disturbed without great detriment to the public. Be [794] sides, such construction has become a part of the law of this case by the decision pronounced in it when previously before us; and it is well settled that, when a cause is brought the second time before this court, we will not question the correctness of the law as declared by the previous decision of it.—Meredith v. Nash, 4 S. & P. 62; Gee v. Williamson, 1 Por. 321; Goodwin v. McGehee, 15 Ala. 239; Rugely & Harrison v. Robinson, 19 Ala. 412. The retroactive effect which this court, by a series of adjudications, (see 7 Ala. 923; 9 ib. 925; 10 ib. 915; 12 ib. 494; 20 ib. 540, 557,) has given to the act of 1843, does not, in our opinion, conflict with any constitutional provision. The law, prior to the act of 1843, subjected the property of a deceased insolvent to the payment of his debts, and certain remedies were provided for the benefit of his creditors. This act, designed as an amendment to the previous laws, affects the remedy, and, without divesting the previous representative of the estate of any right partaking of the nature of a contract, it transfers the office which the previous law had conferred upon him, by the appointment of the court or the award of letters testamentary, to the person selected by the creditors, requiring him to settle with such new appointee. But it is very clear that, in this settlement. he would have a right to insist upon protecting himself, to the same extent as if he had been required to settle and make distribution under the old law, as provided for the settlement of insolvent estates : that is to say, the application of the act of 1843 to the administration, when a new representative of the estate is elected by the creditors, is tantamount to a revocation of his letters testamentary, and requires that he should come to a settlement; but, while it changes the mode of proceeding t.j a final settlement of the estate, it takes from the executor no vested right personal to himself and which he could have insisted upon as the law previously stood. The statute may well provide for a revocation of the authority which has been previously given him by the court under the provisions of the preexisting law, but the legislature cannot legitimately say that what constituted a valid and binding obligation in his favor against the estate, shall be destroyed or impaired by this subsequent act. The record before us does not show that any such right will be interfered with by the construction which has been placed [795] upon the act of 1843, nor that the primary court has attempted to deprive the executors of any demand which they might lawfully have claimed under a settlement made in conformity with the previous law. The statute of 9th February, 1843, does not seem to contemplate that the contest as to the demands due to the creditors should be determined prior to their going into an election of an administrator, nor before the first representative of the estate is called to a settlement. There is certainly much reason and good sense in the suggestion that the court cannot tell, until after the contest is determined, who are and who are not subsisting creditors, since their demands or claims may be rejected, and consequently, if the election for an administrator de bonis non precedes the contest, persons may be allowed to vote who have no right to do so ; but this is a matter to be addressed to the legislature, as a reason for a modification of the law. The act, by requiring the court to give notice that-the settlement and election shall take plaee on a certain day, not less than thirty nor more than sixty days from the time the estate is declared insolvent, while nine months are given within which to prepare for the contest of the claims, very clearly indicates that the settlement and election shall precede the contest. — See Acts of 1843, pp. 34, 47. The sixth section also provides for the meeting of the creditors, by the assent of the court, to be continued or adjourned from time to time until an election is made, and shows that there is no such necessary connection between the settlement with the executors and the election of their successor as to require that they should be contemporaneous. , Either may precede the other, to suit the convenience of the parties, by the assent of the court, although no final judgment could be awarded against the executor until his successor was qualified. The most the court could do before that would be, to make the settlement so far as to ascertain the state of accounts between the executor and the estate, and to determine the amount of assets in his hands, and it could afterwards order the same to be delivered over to his successor, when one should be appointed as provided for. We are unable to perceive any error in the proceedings of the court as far as it progressed. Thus far, they conform to the directions indicated by the previous deoision. Let the judgment be affirmed.