Scruggs v. Driver's Executors

WALKEB, J. — The defendant’s declaration, proved in Thompson’s deposition, is sufficient evidence that Mrs. Driver died on the 9th February, 1853. The probability that the defendant, who was Mrs. Driver’s attorney in fact, and her brother, and the executor of her will, was correctly informed as to the date of her death; the fact that there is nothing in the proof conflicting with the correctness of the admission, and that there is no perceivable reason for distrusting the memory or veracity of the witness, authorize the estimate of the declaration as reliable evidence. Mrs. Driver’s death on the 9th February, 1853, operated an instantaneous revocation of the power ■conferred by her letter of attorney on the defendant. The defendant’s agency cannot be classed with any of the exceptions to the general rule, either established, or suggested as reasonable and just in the law-books. If the contracts described in the pleadings were made on the 10th February, 1853, the next day after Mrs. Driver’s death, they were void, for the defendant’s agency was terminated on the preceding day. The contract was committed to writing on the 10th day of the month. On that day the defendant, for Mrs. Driver, executed a conveyance of her dower and share as distributee in the estate; and the complainants executed written evidences of their promises to pay the purchase-money. It is contended that an unwritten contract, identical with that — 285 — committed to writing on tbe 10th February, existed previously to that day, which, being complete before the expiration of the defendant’s agency, was not annulled .by the act of afterwards committing it to writing. Two plantations, with slaves and other personal property upon them, belonging to the complainants’ testator, were in different counties in the State of Mississippi; and the residence of the testator belonging to the estate was in Memphis, Tennessee. The evidence discloses that, on the 6th January, 1853, Hunt, one of the executors, and the defendant, were together on one of the plantations in the State of Mississippi, and had a valuation made of the personal property belonging to the plantation, and some house servants and other property that had been carried to the plantation from Memphis, by commissioners who were appointed by the probate court of the county in which the plantation was situated, to allot to Mrs. Driver her dower, and apportion to her her share of the personalty. Those commissioners, besides valuing the property, allotted to Mrs. Driver several slaves and a carriage and horses, at a fixed value. On the 28th January, 1853, Hunt and defendant had a similar valuation of the personal property on the other plantation in Mississippi made by commissioners appointed by the probate court of the county. These last named commissioners assigned to Mrs. Driver another family slave at a certain value. Hunt and the defendant then went to Memphis, dispatching a messenger to the complainant G-iles L. Driver, with the request that he should meet them in Memphis. Giles L. Driver received the message, and met Hunt (his co-executor) and the defendant in Memphis on the 3d February, 1853. It appears from the evidence, that Hunt declared, pending the proceedings at the two plantations in Mississippi, that he had bought Mrs. Driver’s dower in the lands of her deceased husband, at five thousand dollars in cash, and her interest in the personal property at valuation, and her share in the ehoses in action of the estate; and that she was to take the house servants, and the carriage and horses, which were valued, at the estimate of the com — 286 — missioners; that he (Hunt) was to have one and two years on the debt for the share in the personal property; and that they were to go to Memphis and ascertain the amount of Mrs. Driver’s share of the debts due the estate. There is no proof that the complainant Giles L. Driver knew anything of the proceedings and negotiations between Hunt and the defendant, until he was reached by the messenger sent to obtain his attendance in Memphis. When informed by him of the arrangement entered into between Hunt and defendant, he neither assented nor dissented. After arriving at Memphis, the three (the two complainants, and the defendant) entered upon an examination of the debts of Driver’s estate, with a view to the ascertainment. of the amount of Mrs. Driver’s share of them, after an allowance for the payment of the debts against the estate. This examination was continued up to the iOth February, 1853, when the contracts described in the pleadings were signed. On the fourth of February, Hunt wrote a letter from Memphis to one W. Scruggs, from which we make the following extract: “We have just concluded a division of the estate. Mrs. D.’s share of the personal property amounts to $20,000, of which she takes in negroes, &c., $10,000. We purchased her dower interest in the lands unsold at Mr. Driver’s death, for $5,000. Her share in the notes, crops, &c., I do not think will amount to more than $2,500 or $3,000. We have not quite closed the last matter yet. Your brother will leave for Huntsville in a few days. I let him have the carriage and horses for $650 — a mere song.” After a careful study of the foregoing testimony, we have attained the conclusion, that the contract between the parties was never completed, until the writings were executed on the 10th February, 1853. In the first place, the evidence does not show that Giles L. Driver, one of the executors, assented to the contract until that time. The concession that the contract was assented to by one of the executors before the 10th of February, will not aid the defendant, because it is not competent for one of the representatives of the estate, without the concurrence of — 287 — another, to create against it, and fix upon it, by a contract for the purchase of property, a pecuniary liability. It has been twice decided in this State, that one of several executors or administrators cannot revive a debt barred by the statute of limitations. — Pitts v. Wooten’s Executors, 24 Ala. 474; Caruthors v. Mardis, 3 Ala. 599. These decisions are placed upon the ground, that it is not permissible for one executor or administrator, by his promise or admission, to impose a personal liability upon his co-executor or co-administrator, without the knowledge or assent of the latter; which would result, if a judgment against the representatives of an estate, operating as. an admission of assets, could be rendered upon such promise or admission. It is true, that several executors or administrators are regarded, for most purposes, as one person; and therefore the acts of each, in relation to tne regular administration of the estate, such as the sale, delivery, and possession of the goods of the estate, the release and discharge of the debts due to the estate, &c., are deemed the acts of all. Stuyvessant v. Hall, 2 Barbour’s Ch. R. 151-160; Herald v. Harper, 8 Blackf. R. 170; Hick v. Gilson, 1 Penn. State R. (Barr) 54; Wheeler v. Wheeler, 9 Cowen, 34. But a different rule prevails as to those acts which may affect the personal responsibility of the several representatives of the estate. One executor could not subject the estate to a judgment, upon his promises to pay for property purchased by him, without the participation of his co-executor; for, if he could, he might fasten a personal liability upon his co-executor, without the consent or knowledge of the latter. Upon this principle, the authorities fully recognize, as a general rule, the doctrine that one executor or administrator cannot create a debt against an estate, where none existed before. — Hall v. Boyd, 6 Barr, (Penn. State R.) 267; James v. Hackley, 16 Johns. 273; Hammon v. Huntley, 4 Cowen, 493; Forsyth v. Ganson, 5 Wend. 558; McIntyre v. Morris, 14 Wend. 90. The question of the admissibility and effect of admissions by one representative, in suits against all of them, designed to charge the estate, has been very carefully and — 288 — fully considered in the cases of James v. Hackley, Hammon v. Huntley, Forsyth v. Ganson, and McIntyre v. Morris, above cited from the New York [Reports. In the case of James v. Hackley, where one administrator had acknowledged a certain balance to be due on a debt of the intestate, it is intimated that the admission was, privia fade, evidence against both administrators; but that its correctness might be controverted. In the other three cases, it is expressly decided, that the estate cannot be charged upon the admission of a part of the executors or administrators. To the same effect, also, is the decision in the case of Hall v. Boyd, supra ; and the principle of those decisions seems to be fully recognized by this court, in the cases which hold that the promise of one executor or administrator will not revive a debt barred by the statute of limitations. It is not necessary for us in this decision to define the cases in which the admissions of any one or more of the representatives of an estate are evidence against all. Confining ourselves to the point necessarily arising, we merely deny that a charge against an estate can be established by the mere admission of a part of the executors or administrators. From the principles above laid down it follows, that the contract described in the pleadings, which would create a large new liability against the estate, could not be made by Hunt, one of the executors, alone, and could not become the contract of the executors, binding the estate? until it received the assent of Giles L. Driver, the other executor; and that the contract cannot be established by the mere admission of Hunt, one of the executors. If it be conceded that the letter of ■ Hunt, dated 4th February, 1853, shows that the contract was then complete, (which we are not prepared to admit,) it would not be sufficient to establish the contract charging the two executors representing the estate, because it is the naked admission of one executor. Besides this letter, there is no proof that Giles L. Driver ever asssented to the contract, until the papers were executed on the 10th February. In the absence of proof to the contrary, we must regard the execution of the papers as the consummation of the con — 289 — tract. Whatever agreement or stipulations may have been previously made by Hunt, they could not make a contract by tbe executors of Driver. The liability of the executors, representing the estate, attached when the two united in giving their assent to the contract, and not sooner. There is no proof of such united assent until the 10 th February, when the authority of the defendant had terminated. The contract was executed under a mutual mistake as to the existence of the defendant’s authority, and as to the existence of a right to dower in Mrs. Driver, and could not be binding on either party. The complainants have a right to recover back the money paid on the bill of exchange drawn by them, and to prevent the collection of the notes given by them. — Hitchcock v. Giddings, 5 Price, 135; Trippe v. Trippe, 29 Ala. 637. We concur with the chancellor, that the defendant has made out a title to the slaves, and carriage and horses, independently of the contract, as an allotment to Mrs. Driver of a part of her distributive share of the estate of her deceased husband, which she takes at the valuation of the commissioners appointed by the Mississippi probate court. We have not noticed the question of the effect of the statute of frauds, so much pressed in the argument of counsel. The contract was made in another State ; and it is not averred in the original bill that there exists in that State any statute requiring conveyances of land to be in writing; and there is no proof in the transcript of any such statute. The complainants must, therefore, be denied the benefit of any conclusion favorable to them as complainants in the original bill which might have been drawn from that statute. There are other considerations, conducing to show that there was no complete contract between the parties until the 10th of February; but we omit to notice them, because the view which we have taken is conclusive of that point in the case. It is contended for the defendant, that the complainants have a complete remedy at law, by an action to recover back the purchase-money of Mrs. Driver’s dower, and by — 290 — defense at law against the notes when sued upon. The assumption in tbis argument, that the complainants could recover the money paid by action at law, and that they could upon the facts alleged successfully resist a suit upon the notes, is undoubtedly correct. But the complainants are not bound to wait until the defendant may choose to institute suit upon the notes. The notes are negotiable by endorsement under the laws of this State, notwithstanding they may have been made in another State. Wilkerson v. Rutherford, 29 Ala. It is inferrible that the notes do not, upon their faces, disclose the want of consideration, but appear to be valid and binding securities. The delay in the determination of the question whether those notes are valid evidences of debt against the estate, must necessarily tend to embarrass the administration of the estate. The effect of a postponement of that question, until the period prescribed by the statute of limitations might approach completion, would probably be detrimental to the interests of the estate, and might injuriously affect the legatees. In the case of Hamilton v. Cummings, 1 Johns. Ch. 520, Chancellor Kent held, that the chancery court would not take jurisdiction in every case for the purpose of canceling a security for the payment of money, but that judicial discretion must, upon the circumstances of each case, determine the question. — Elliott v. Piersoll, 6 Peters, 95; 2 Story’s Eq. Juris. § 700. Adopting the principle above quoted from the case of Hamilton v. Cummings, we decide, that the bill and proof make out a case proper for the exercise of the preventive jurisdiction of the court to cancel the notes. We have been able to find no case, with such features as are found in this, in which the jurisdiction has been denied. The case of Hitchcock v. Giddings, 4 Price, is one in which the power of cancellation was exercised under circumstances not so strong as those of this case, although strikingly similar. See, also, Sessions v. Jones, 6 How. (Miss.) 123; Garrett v. M. & A. R. R. Co., 1 Freem. Ch. 70; Main v. Garner, 1 Martin & Yerger, (Tenn.) 383; Castor v. Mitchell, 4 Wash. C. C. R. 191. — 291 — The court, having jurisdiction to cancel the notes, will go on and do complete justice, by granting the complainants all the relief to which they are entitled, notwithstanding there may be an adequate remedy at law as to a part. — Stow v. Bozeman, 29 Ala. 397; 1 Story’s Equity, § 71; Cathcart v. Robinson, 5 Peters, 263; Miller v. McCan, 7 Paige, 451. Conceding that the complainants have a remedy at law, in an action of assumpsit, to recover the money paid for the widow’s dower, the court, in our opinion, properly granted relief as to that matter, as it had jurisdiction upon an independent ground, and, by doing so, would render complete justice without an additional suit. There must be, however, a limit to the doctrine, that the jurisdiction over one subject of litigation may bring within the grasp of the court another matter of legal cognizance. Jurisdiction over one subject would not give the court control over a separate matter not connected with it. Such, however, is not the case here. The negotiations for the sale of the widow’s dowor, and of her share in the personalty, commenced together, and proceeded pari passu; and the sale of the two interests were finally consummated by the same writing. They are both parts of the same transaction, and the evidence conduces to show that the one would not have been made without the other. The same facts constitute the complainants’ claim to relief as to both matters. Under such circumstances, we think that the chancellor properly granted relief as to both matters. The two decisions of Worthy v. Lyon, 18 Ala. 784, and Calhoun v. King, 5 Ala. 523, are, perhaps, not altogether reconcilable. But whether wo adopt the one or the other as a correct exposition of the law, we have an authority conclusive against the maintenance of the cross bill, as an application for the distributive share of Mrs. Driver in the personal estate of her deceased husband. The complainants are executors, qualified before the courts of other jurisdictions, in which the administration of the estate and the execution of the will are pending; and there does not appear to be any administration or assets — 292 — in this State, or any danger of loss to the defendant, if remitted to the foreign jurisdiction for the recovery of the distributive share of his testatrix. The chancellor properly rescinded the contract of 10th February, 1853, in toto; which leaves the defendant to prosecute his claim, to the share of his testatrix in the estate of her deceased husband, unembarrassed by the contract. Whatever rights the defendant may have under the statute of distributions, or under the deex-ees of the probate courts of Mississippi, ai-e left unaffected by the contract. Such is the result of the chancellor’s decree. The decree of the chancellor is affirmed, at the costs of the appellant.