Weakley v. Gurley's Adm'r

MANNING, J. Appellee, Hammond, administrator de l)onis non, &o., of John Gurley, deceased, filed his bill of complaint in this cause, to remove his administration from the Probate Court of Madison county, into the Chancery Court. This is the principal object of tbe suit. It was brought March 30, 1877. In December, 1872, he had caused a citation to issue to Frank B. Gurley, his predecessor, and the first administrator of the estate, to settle his administration thereof, in the Probate Court. In January, 1873, Gurley “ filed his statement, account, vouchers, and list of heirs, for a final settlement; ” and the 28th day of February, 1873, was appointed for action by the court thereon. Then, and some few months afterwards, the matter was regularly continued, but nothing else was ever done in it subsequently. The proceeding seems to have been wholly neglected by both parties, and by the Probate Court, where it remains suspended. The settlement of this administration of Frank B. 1 Gurley is also by the bill sought to be drawn into this cause in the Chancery Court. But it does not properly constitute any part of the present suit. Gurley’s administration is a thing distinet from that of his successor, Hammond. The latter is entitled, certainly, to bring Gurley to a settlement, and to recover any assets that may remain in his hands unadministered; and under the statute, they will then become assets in Hammond’s hands. So, likewise, would he have a right to sue for, and recover from any debtor of the estate, tlie moneys due from him to it; and. they also would be assets for Hammond to administer. But no one would, therefore, suppose that a suit against such debtor could be comprehended in this bill, and carried forward pari passu, as a part of this administration cause, instead of being brought in a court of law. Yet such a suit would not be any more distinct from the present cause, than would be the proceeding to bring Gurley to a settlement. In eases of that kind, if litigation be necessary, it must be had in separate and independent suits against the parties supposed to be respectively liable. And it is only the fruits of them that Hammond would be required to account for in the settlement of his administration. Hence, whether the settlement of Gurley ought to be coerced in the Court of Probate, or in the Chancery Court, for which latter course no reason is shown, it is not in the present cause that it should be done. , 2. The bill further sets forth, that Eebecca Gurley, widow — 405 — of appellee’s intestate, had, by bill in chancery filed in 1868, sued for dower in the lands, about 1870 acres, of which her husband died seized, and in certain other lands of which he had been seized during her marriage to him, but which he had, in separate parcels, given to his sons, William, Frank, and Thomas, severally; and also for rent, according to the statute, for the lands of which he died seized; that commissioners, appointed by the chancellor, had set off, and reported, in November, 1872, about 540 acres of said land for the dower of said Bebecca, of which about 284 acres were of the lands that had been given by intestate to his sons; and that afterwards, in December, 1875, a decree in said cause, purporting to have been rendered by consent of all the parties, including appellee as administrator, assigned to said Bebecca 280 acres of said lands in fee-simple, in lieu of the parcels allotted to her by the commissioners, and ordered that $2,000 be paid to her by complainant (appellee), for rent of the lands of the estate since the death of intestate. But, complainant avers that the recital in the record in that cause, under date of January, 1872, that he had been made a party thereto in the place of the former administrator, Frank B. Gurley, and the recital of consent to the decree, are not true, so far as he is concerned; that the agreement to the consent-decree was made among the heirs of his intestate, without his participation, or consent, or knowledge ; and that he had no information thereof, until a few days before the filing of the present bill. The bill further alleges, that the $2,000 had been paid to said Bebecca, without complainant’s authority or knowledge, by the said Thomas P. and Frank B. Gurley, who now claim that they were thus subrogated to her right to demand and have said sum from complainant; and that, insisting thereupon, they and some other persons, who respectively bought lands of the intestate, at a sale thereof made by complainant under an order of the Probate Court, to enable him to pay debts, refused to pay him therefor, and assert a right to set off said $2,000 and interest, under an arrangement among themselves, against the price they bid for said lands; of which they retain the possession. In respect to this sale, or offer to sell, complainant was authorized, it seems, by a decree of the Probate Court, rendered in April, 1874, upon his petition, to sell 782 acres, part of the lands of said estate, to pay its debts ; the sale to be made “ at public outcry, at the court-house door in said county, in manner and form as the law directs in such cases, after having first given notice for at least three successive weeks, of the time, place and terms of sale, in the Huntsville — 406 — Advocate,” etc. Under this order, according to the bill, complainant advertised a sale of the lands in December, 1875, for cash ; at which sale Thomas P. Gurley bid off 200 acres, more or less, for $1,075; and James Hambrick bid off about 80 acres, for $305; and Ellen M. Weakley, Elias B. Spragins and Sallie P, Sale bid off 470 acres, more or less, for $3,461.38; and Louisa O. E. Vincent bid off about 40 acres, for $21, which she paid therefor, — the said Louisa being the only one of the persons who paid the prices they respectively bid. No account of this proceeding was rendered to the Probate Court, until the 14th of February, 1877; at which time, complainant reported the purchase and payment made by Mrs. Vincent, tüe sale to whom was confirmed, and in respect to the rest of the land, says that it “ was all offered for sale, and bid off by different persons, who did not comply with the terms of said sale, or with any part thereof; and the undersigned has again advertised ail of said lands for sale, excepting the said forty acres purchased and paid for by the said Louisa C. Vincent.” The decree of sale made by the Probate Court is not alleged to be invalid, and does not appear to be so; though it is averred in the bill that “ said decree, by mistake, fails to show on what terms said land was to be sold.” A decree to sell lands to pay debts, without authorizing any credit, is, in effect, an order to sell for cash. It is only when time is to be allowed for the payment of the Avhole, or a part of the purchase-money, that it is necessary, though it is always advisable, that the decree should specify the terms of sale. See Eevised Code, §§ 2086, 2090, embraced in § 2456 of Code of 1876. 3. Upon averments which are substantially as above stated, one of the prayers of the bill in this cause is, that the Chancery Court will order “ the register of this court to sell all of the real estate which now belongs to the estate of said decedent, on such terms as the court may direct.” But, no legal reason is thus far shown, why that court should intervene to do so. Not only has the Probate Court all the authority necessary to this end, but, on complainant’s application, made more than two years after his appointment, that court, in April, 1874, authorized him to sell all the land he then deemed necessary for the payment of the debts. Yet twenty months were suffered to elapse before he endeavored to avail himself of this authority; and when all the persons but one, to whom the lands had been cried off, refused to pay for them, more than a year was allowed to pass away, before any report thereof was made, or any further effort to effectuate a sale. The alleged demand of the bidders, — 407 — that they should he allowed to set off the amount they claimed as due from complainant through Bebecca Gurley to them, against the price of the lands, or to pay this price therewith, was a pretension so destitute of support in law, that it could create no obstacle to a resale of the lands, at their risk. There was no order of confirmation by the Probate Court, of any sales to them; nor could the pretension referred to cast the slightest cloud, in the judgment of any body, upon the title that would be acquired by a purchaser at a subsequent sale, from the administrator; and since it is only with this part of the matter of the present bill, that the decree in Bebecca Gurley’s suit for dower and rent can have any such relation as might bring it within the scope of this suit, the bill, if it were maintainable at all, would be multifarious for embracing that decree, had any relief been prayed for in respect thereto. But, perhaps because it is obviously irrelevant matter, the bill does not seek to set aside or vacate that decree. 4. It is further, however, alleged by complainant, that the defendants Ellen M. Weakley, Bailie P. Sale, and Bobert S. Spragins, the latter as executor of Elias C. Spragins, deceased, having severally just claims against the estate of his intestate, brought their actions in the Circuit Court of Madison county, thereupon, against complainant as administrator ; who, there being no assets of said estate except the lands, allowed them, in October, 1873, to take judgments therein, amounting all together to nearly $3,000, upon “ an agreement and understanding, that no effort was to be made to charge him personally, or to charge the sureties upon his bond, with the amount of such judgments; ” that notwithstanding this, said Ellen M. Weakley had, in 1876, brought suit in the Circuit Court of Madison county, against complainant and his bondsmen, and is now prosecuting the same; and that, although, at the time said judgments were taken, the land of said estate would have sold for money enough to pay the debts, it would not now do so, because of the great depreciation in its value, in consequence of the depreciation in the value of property generally. Complainant further alleges, that he has received as administrator only $21, and has paid out $263; that the personal estate is insufficient to pay the debts, and the real estate will have to be sold for that purpose ; that, “ in his opinion, said estate is insolvent; ” that Frank B. Gurley gave a bond in $12,000, with Thomas P. Gurley and William B. Gurley as his sureties, and has never made a final settlement of his administration ; that upon such settlement said Frank will be indebted to the estate in a large sum ; and that the accounts — 408 — between complainant and said Gurleys are too complicated to be settled in tbe Probate' Court, and justice can only be done in tbe premises in a court of equity; wherefore he prays that court to take jurisdiction of all these matters, and settle the same, &c. There is, also, the general prayer for relief. It is quite clear that complainant could not be allowed to prove that such an agreement and understanding as that he sets up was orally entered into with the judgment creditors mentioned, and thereby defeat the obvious effect .of a judgment against him as administrator. Evidently, too, if this were permissible, it would have to be done in suits brought by him against the several parties to such separate judgments alone, and not against them jointly, or against them and other persons. The averment referred to affords no foundation for such a joinder. 5. Nor can the bill be maintained, in respect to these several creditors, upon any other averments therein, as a bill of conformity. If the property of the estate is so reduced in value, by the general shrinkage in values, as to be insufficient now to pay the debts which it was more than adequate formerly to discharge; yet, since it appears that, by due diligence in administration, the debts, might have been paid long ago, the administrator wholly fails to make out a case that entitles him to maintain such a bill. It comes rather under the censure mentioned by Justice Story, when he says: “ Besides, it has been said, that these bills may be made use of by executors and administrators, to keep creditors out of their money longer than they otherwise would be.” — 1 Story’s Eq. Jur. § 544. 6. It is rare that an estate, of the value of John Gurley’s, is so free from complications that embarrass administration, as his estate appears to have been when complainant became administrator. During a period of over five years, according to his bills and exhibits, although nothing is shown that could hinder him in the performance of any of his duties, he has not collected from the former administrator any of the assets, which he says are in his hands; he has not sold any of the real estate, which was subject to be disposed of, to pay the debts, except $21 worth; he has not paid a dollar to any of the intestate’s creditors ; and now, when he is urged by them, and by the heirs, to pay the debts, and bring the administration to a close, he seeks to bundle up together all the various matters which touch the estate in any point, and to associate together all the different persons who, independently of one another, are connected with any of such separate matters, and bring them — 409 — all thus intermixed and involved into the Court of Chancery as an administration cause. We are not aware of any authority for this. And such a course, if alllowable, would necessarily produce almost inextricable confusion, as well as greatly increase the delay and expense of the litigation. In Gould v. Hayes (19 Ala. 450), speaking of the jurisdiction of courts of equity in matters of administration, this court said: “ The remedy in the Orphans’ [now Probate] Court being cheaper and more expeditious than that afforded by Chancery, this court, at an early day, doubtless more as a matter of sound policy, than of strict legal requirement, was inclined to confine heirs, distributees, &c. of a deceased person’s estate, to the Orphans’ Court, in cases where the powers of that court were adequate to administer full relief.” It would be well, probably, if this policy had been more vigorously upheld. But, although the parties mentioned, the beneficiaries of an estate, are considered entitled to carry their cause into equity, at any time before the concurrent jurisdiction of the Probate Court over the settlement has attached, without assigning' any special reason for doing so; this privilege is not conceded to an executor, or administrator. When he undertakes to transfer the administration into chancery, he must assign a good equitaNe ground for asking that court to take jurisdiction of it.—Moore v. Lesueur, 33 Ala. 241; McNeill v. McNeill, 36 Ala. 115; Hill v. Armistead, at the last term. The statutes have provided for appeals from particular orders and rulings, as they from time to time are made by the Probate Court, in an estate undergoing administration, without suspending the power of that court over any other matter therein, and without removing the entire cause into the appellate court. — See § 3954 (2244), and those following it, in Code of 1876. But, when a cause in chancery is removed by appeal into this court, it comes here entire; and in the meantime, there is an inconvenient suspension of the jurisdiction of the Chancery Court therein, which hinders it from carrying forward the business of administration.—Burton v. Brown, 22 Grattan, 1; Moore v. Randolph, 52 Ala. 530. After a careful consideration of the case, we are of opinion that, for the reasons assigned in the demurrers, the bill is without equity. The decree of the chancellor overruling the demurrer is, therefore, reversed; and a decree will here be rendered sustaining the demurrer, dissolving the injunction obtained by complainant, and dismissing the bill, without prejudice to the filing of another.