Meadows v. Edwards & Brassell

B. E. SAEFOLD, J. The decree pro confesso against Edwards was set aside because it was not rendered by the register, but by another acting for him in his absence. There was'no error in this. The bill was filed by the appellants to correct errors alleged to have occurred in the final settlement of the accounts of the appellee, Edwards, as administrator of the estate of George W. Brassell. It was dismissed for want of equity. The errors charged are, 1st. The administrator failed to account for the, value of some firewood which he cut and hauled in 1864, with the slaves and wagon and teams of his intestate’s estate, and sold for about $600. 2d. He paid out $611.45 in Confederate currency, for which he was allowed credit at its nominal value,' though it resulted in bringing the estate in debt to him to that amount inlawful money. The averments in denial of fault or negligence are, that [358] the complainants were minors without any guardian, having been represented by a guardian ad litem only; and that their brother, John E. Brassell, who was the administrator de bonis non, failed or neglected to guard their interests. The difficulty in this case is that similar allegations of error, on belief merely, and of inefficient representation, may be made in every case where minors are represented by guardians ad litem. On the other hand, grave injury may be done them, if they are to be concluded by the action of an indifferent guardian ad litem, who does not care to make himself acquainted with the true situation of their affairs. Section 2274, Revised Code, which authorizes this proceeding, requires but two conditions, error of law or fact, and the absence of fault or neglect of the party injured. Section 2275 allows to infants two years after the termination of their disability. The statute seems to contemplate a review of the settlement made in the probate court, upon specified errors positively charged, little short of the privilege and right of appeal. If the error be admitted, can a minor in any case be said to be at fault, in view of his probable tender years, and because he is not allowed to represent himself. . The second error above stated is too vaguely alleged in the bill. The facts stated may be true, and yet consistent with a just decree allowing the credit. If the administrator settled debts, for which lawful money might have been demanded, with Confederate currency obtained by the sale of property at a time when it was the only circulating medium; or if, having excusably obtained it, he used it in the payment of debts contracted to be paid in such currency, he ought to have been allowed the credit. There are other instances which would justify the allowance. It was not charged that the balance decreed in his favor was on account of Confederate currency estimated at its nominal value in lawful money. The want of equity in the first allegation is not so manifest. An answer of the defendant Edwards, which was correctly adjudged by the court to be insufficient, discloses [359] that be did not report to tbe probate court bis liability for tbe use of some of tbe property of tbe estate in tbe matter of tbe wood, though be avers that the receipts were inconsiderable, and were applied to tbe use of tbe complainants. In Morrow v. Allison, 39 Ala. 70, errors not considerably greater than tbe one alleged in this ease were deemed sufficient to sustain tbe bill. The administrator is about to take the property of the complainants in payment of a decree for no greater amount than the error complained of. We think on this point tbe court erred. Tbe objection made by tbe appellee that the estate is not yet finally settled, is not well taken. So far as be is concerned, it is settled, and be is about to enforce bis decree. Tbe administrator de bonis non cannot be charged with-errors of tbe court, or with those of bis predecessor, in tbe absence of proof of such culpable neglect of bis duty, or collusion, as would render any administrator liable for waste or failure to collect assets. Tbe distributees of an estate are interested parties until it is declared insolvent, and may be to some extent afterwards. Tbe decree is reversed and tbe cause remanded.