Hatchett v. Billingslea

STONE, J. — Prior to the enactment of the statute, “ To regulate settlements in the Orphan’s Court,” approved February 4th, 1846 (Pamph. Acts, 14), an administrator de bonis non could recover from his predecessor only such assets of the estate as remained in specie, unconverted and unchanged, 1 Brick. Dig. 919,' § 82. That statute changed the law in this respect. Its provisions were carried into the Code of 1852, and form the subject of chapter 9, title 4, part 2, beginning with section 1876. That section provides that, “whenever an executor or administrator is removed, resigns, or his letters* are revoked, or his authority ceases from any cause, he must, within one month thereafter, file his account, vouchers, evidence, and statement of the heirs and legatees, as in the case of other settlements; and upon the same being duly advertised as other settlements, his account must be audited, stated, and a decree rendered'thereon.” Section 1877: “ If there is any remaining or succeeding executor or administrator on said estate, a decree must be rendered in — 25 — his favor, for the amount found due on such settlement, or for the delivery of any personal property in the hands of the executor or administrator whose authority has ceased.” The next four sections provide measures for compelling a settlement in such cases; and section 1882 provides, that “ the proceedings under this article do not prevent any action by the remaining or succeeding executor or administrator, or by any other person entitled thereto, against such executor or administrator, for any property remaining in his hands, or other causes of action.” It will be observed that these enactments only authorized decrees in favor of a remaining or succeeding administrator, and gave no authority for rendering decrees against them. The law stood thus, until the amendatory statute of February 5th, 1858, was passed. — Pamph. Acts, 53. The first section of that statute provides, that the personal representative of a deceased executor or administrator, or a resigned or removed executor or administrator, may file his accounts and vouchers, and make final settlement of such administration. Section three introduces a new feature theretofore unknown. It provides, “ that if, ¡on said settlement, a balance shall be ascertained to be due from the estate of said testator or intestate, to said deceased, resigned, or removed executor or administrator, the Probate Court may render a decree in favor of the personal representative of such deceased executor or administrator, or in favor of such resigned or removed executor or administrator, against the said administrator de bonis non, for the balance so ascertained to be due from the estate of said testator or intestate; and payment thereof may be enforced by execution against such administrator de bonis non, to be levied of any effects of said estate in his hands unadministered, if said estate is solvent; but, "if insolvent, then said decree to be paid as other claims against insolvent estates.” The first section of this statute had provided, that the settlement under this act was “ to be governed by the laws now in force in this State, regulating the settlement of estates of deceased persons.” One of the provisions of the law then in force, regulating the settlement of estates of deceased persons, was, that notice must be given of. the day appointed for such settlement, “ by publication in some newspaper published in the county, for three successive weeks; or, if none is published therein, by posting such notice,” &c. — Code of 1852, § 1805. Still, under the act of February 5th, 1858, we find this additional provision: Section 2. “ That the executor(?) or administrator de bonis non of said original testator or intestate shall be made a party to said settlement, and shall have personal notice of the time — 26 — of said settlement. served upon him, at least twenty days before the day appointed for said settlement.” In the Code of 1867, sections 1876 to 1882, inclusive, of the Code of 1852, are inserted verbatim, and without alteration, as sections 2232 to 2238, inclusive. As in the Code of 1852, they constitute chapter 9, title 4, part 2, with the same caption, “ Compelling executors and administrators, whose authority has ceased, to make settlement.” In the same Code of 1867, the act of February 5th, 1858, is inserted entire, in chapter 6, title 4, part 2, and constitutes sections 2165 to 2168, inclusive. Both statutes, or systems, relate to the same subject — the settlement of administrations, after the authority of the executor or administrator has terminated by resignation, removal, or death. Both provide for settlement of estates whose administration is incomplete, and in which a decree of distribution can not be made. Both contemplate the necessity of other and further functions of administratorship; and hence, a continuing or succeeding representative of the estate, and not the next of kin, is the person to be settled with; the person in whose favor, or against whom, the decree is to be rendered. In the case of Hatchett v. Billingslea, at the last term — a suit concerning this same administration — we had occasion to remark, that in the codification of 1867, the provisions of the act of February 5th, 1858, ought to have been interwoven with sections 1876 to 1882 of the Code of 1852; or, at all events, they should have been placed in juxtaposition. We have found no reason for changing our views then expressed. When a resigned, removed, or representative' of a deceased executor or administrator, makes settlement, either voluntarily or involuntarily, with an administrator de bonis non, notice by publication, or by posting, is not enough. In such case, the law has been changed and amended by section 2 of the act of 1858 — now section 2538 (2166) of the Code of 1876. In other words, that section declares that, in that class of settlements, the notice by publication or posting, provided for in the Code of 1852, is insufficient. Any construction, other than this, will leave that section without any operation, so far as it requires personal notice to be served. Section 2590 of the Code of 1876 is, in substance, precisely the same as 2537 of the same Code. One of these sections should have been omitted, and section 2538, taken from the act of February 5th, 1858, should have been inserted immediately after the one retained. Then sections 2539 and 2591 should have been interwoven, or placed together by the codifiers, as covering the whole jurisdiction and power of the court in rendering decrees on settlements between the administrator — 27 — in chief and the continuing or succeeding administrator. Thus placed, counsel and courts would not have fallen into the errors we sometimes encounter, in reviewing such settlements. We come, then, to the conclusion, that the provisions of section 2538, Code of 1876, must be observed in all settlements, when a resigned or removed executor or administrator, or the personal representative of a deceased one, is the party on the one hand, and a continuing executor or administrator, or an administrator de bonis non, is the adversary party. We leave sections 2644-5-6 of the Code of 1876 for comment hereafter. We have shown above that, in settlements such as this, personal notice, under section 2538, is required to be given to the administrator de bonis non. On appeal from such decree, if the record failed to show such notice, or the presence of the administrator de bonis non at the settlement, the decree would be reversed. The object of notice is, that the administrator may appear at the settlement, and have an opportunity to contest the account. This is. eminently necessary and just; for, as the law now stands, a decree may be rendered against him, in favor of the outgone administrator; and if the estate be solvent, an execution may be ordered thereon, under which the assets of the estate may be sold away from his possession and control. On each of the inquiries, of a balance due the outgone administrator, and of 'the solvency of the estate, the estate and the administrator de bonis non should be represented. Of course, if the administrator de bonis non appeared, and if the record, by its recitals, showed that fact, this would be sufficient, and the decree would not be reversed for want of notice. It is contended in this case that, inasmuch as the record recites that Hatchett, the administrator de bonis non, caused Mrs. Billingslea to be cited to make a final settlement, no notice to him was necessary. This, we think, would be true, if the citation had been obeyed. Inaugurating such proceedings, if they progressed regularly in obedience to such citation, he would be held cognizant of all that was done. The record recites, that Henry C. Billingslea and Harriet Billingslea were, on the 29th June, 1877, at the instance of W. T. Hatchett, ordered to be cited to appear before the Probate Court on the 18th day of July (then) next, to file their account and vouchers for a final settlement. The record does not inform us that any further action was had under this citation. In proceedings instituted by motion or notice, if the case be not tried or continued on the day set for hearing the motion, or the day to which the notice is returnable, the proceeding is discontinued. — 2 Brick. Dig. 368, §§ 109, — 28 — 110. The next proceeding was had on the 22d October, 1877. The record recites that, on that day, Harriet Billingslea and her husband, H. C. Billingslea, came, and moved the court to set a day for final hearing and auditing of the accounts, &c. The court thereupon appointed the 15th November, 1877, for the settlement, and ordered “ that notice thereof be given by publication for three weeks in the Advertiser and Mail, a newspaper published in this county.” No order for personal service on the administrator de bonis non. The cause was continued to the 19th November, 1877, and on that day the final settlement was had. In the final decree, after reciting the continuance from the 19th, it is said: “ And now came Harriet Billingslea and her husband, H. C. Billingslea, and move the court to proceed to audit the accounts of the said Harriet heretofore filed in this court for the final settlement of her administration; and it appearing to the court that notice of the day set for the hearing of this cause on the 15th November, specifying the name of the deceased, and of the administratrix, Harriet Billingslea, and of her husband, H. C. Billingslea, and that the settlement (is) proposed to be a final settlement, has been given for three successive weeks by publication,” &c.; “ and Benjamin Gardner, who was heretofore appointed to act as guardian ad litem for Leila Glenn, an infant distributee, having consented to act as such guardian, and being now in court, and desiring the court to proceed in said cause :■ thereupon, the court proceeded to audit and state said account,” &o. It will be observed that nothing is said about personal notice to W. T. Hatchett, the administrator de bonis non, nor of his presence at the settlement. The record fails to show any connection between the notice issued at the instance of Hatchett, and the settlement actually made; and such motion and notice, disregarded as the latter appears to have been, did not dispense with the necessity of giving notice under section 2588 of the Code. It is urged, in the next place, that inasmuch as there had been two settlements made by Mrs. Billingslea of her administration — -the decrees afterwards reversed in this court — and inasmuch as we held in the case of Hatchett v. Billingslea, .at last term, that the jurisdiction of the Probate Court had attached by virtue of those proceedings, and had not been discontinued, Hatchett, the administrator de bonis non, in his representative capacity, must be presumed to have been present at the last settlement. The first two settlements were made with Waller, a former administrator de bonis non. The present settlement was had with a different and succeeding representative, and notice to Waller is not notice to Hatchett. The statutes in relation to revivor do not in terms — 29 — apply to proceedings in the Probate Court, such as this; and if they did, we are not informed that any steps have been taken by notice or motión, with a view to a revivor. We hold that a notice to Hatchett was necessary, under the statute. Argument has been made as to the character of the jurisdiction we have been discussing — whether it is general, or special and limited. If the latter, then the error we have pointed out is fatal, even on a collateral presentation. Every thing is presumed in support of a general jurisdiction, which the record does not disprove; while nothing is presumed in •favor of a special or limited jurisdiction, which the record does not affirmatively show. — 2 Brick. Dig. 156-7. Under the constitution of 1875, article 6, section 9, Courts of Probate have general jurisdiction for the granting letters testamentary and of administration, and for orphan’s business. We are satisfied the settlements of executors and administrators fall under the general definition, orphan!s business. — Ikelheimer v. Chapman, 32 Ala. 676, opinion of Stone, J., 684-699. We will regard the Probate Court, in considering the question before us, as one of general jurisdiction. The principle settled in Gunn v. Howell, 27 Ala. 663, would lead to the conclusion, that the decree in this case is void, even when collaterally presented, on the face of the record itself. In Hunt v. Ellison, 32 Ala. 173, opinion of Stone, J., the correctness of the decision in Gunn v. Howell is questioned. In that opinion is the following language : “A majority of the best-considered decisions hold, that if a judgment be pronounced, even by a court of general jurisdiction, against one over whom it has no jurisdiction, or who appears to have had no notice of the existence or pendency of the proceedings, such judgment will be declared a nullity, even when collaterally presented.” Hall v. Williams, 6 Pick. 232, was a suit on a judgment of a sister State, rendered by a court of general jurisdiction. One of the pleas in bar was, “ That neither of the defendants was served with process, or had any notice of the original action, or appeared thereto, or authorized any person to appear for him.” To this it was replied, “ that the defendants are estopped by the record of Georgia from denying, notice, appearance, &c.” Oyer of the record was claimed and obtained, and defendant, demurred to the replication. The suit was by Hall against Williams and Eiske, and the return of the Georgia sheriff was, “ I have served a copy on Edward Williams, Abijah Eiske not to be found in the county.” The plea was by Gordon, attorney for Williams. The judgment entry was as follows : “Afterwards, to-wit, on,” &c., — 30 — “ came the within named Henry Hall, &c., as well as the within named Edward Williams and Abijah Fiske within named, by their attorney within named, and the jurors,” &c. The court, after declaring that the judgment of the Georgia court was to be treated altogether as domestic judgments, in regard to the proof of its existence, said: “ In regard to the conclusiveness of such judgments to all intents and purposes, there is yet a question of considerable importance, which lias been discussed and decided in almost every State in the Union in which there are printed reports of their judicial decisions; and the question is presented now by the issue taken on the second and third pleas to this action. The defendants, in answer to the declaration, say that neither of them was served with notice of the suit in which the judgment was rendered, nor appeared, nor authorized any one to appear for him in the action, and that Fiske was never an inhabitant of, or resident in the State of Georgia. The plaintiffs reply, that the defendants are estopped by the record to deny these facts; and the record being set forth on oyer, the defendants demur to the replication of estoppel. If it appeared by the record that the defendants had notice of the suit, or that they appeared in defense, we incline to think that it could not be gainsaid; for, as we are bound to give full faith and credit to the record, the facts stated in it must be taken to be true, judicially; and if they should be untrue, by reason of mistake, or otherwise, the aggrieved party must resort to the authorities where the judgment was rendered, for redress ; for he could not be allowed to contradict the record by a plea, and by an issue to the country thereon. But, if the record does not show any service of process, or any appearance in the suit, we think he may be allowed to avoid the effect of the judgment here, by showing that he was not within the jurisdiction of the court which rendered it; for it is manifestly against first principles, that a man should be condemned, either criminally or civilly, without an opportunity to be heard in his defense.” The court held the plea good, and the replication bad. The conclusions of the court were summarized as follows: “ If it appear by the record that there was no jurisdiction over the person, the judgment is a nullity, not to be received as prima facie evidence, and the plaintiff must resort to other courts to support his action, or fail. The full faith and credit required to be given in each State to the judicial proceedings of other States, will prevent any evidence to contradict the facts which show a jurisdiction, if such appear on the record.” In Armstrong v. Henshaw (1 Dev. Law, 187), it was ruled, — 31 — that a judgment against a defendant named in the writ, but not made a party either by service, public notice, or attaching his estate, is merely void, and should be disregarded when produced on nul toil record. See, also, Bonner v. Tier, 3 Dev. Law, 533. In Shaefer v. Yates (2 B. Monroe, 453)', the court said: “In a legal or available sense, no person is a party to a suit without either an appearance or judicial notice of some sort; and there can be no doubt that a judgment against a person who was never made a party, is utterly void.” In Backman v. Hopkins, 6 Eng. (Ark.) 157, the court said : “ A judgment rendered without having acquired jurisdiction of the person of the defendant, by notice or otherwise,, would not bind the defendant in the State where it was rendered, and, of course, not in any other State to which it might be transmitted. No valid judgment can be rendered, whereby to affect the rights or liberty of the citizen, unless the court has first acquired jurisdiction of his person, as well as of the subject-matter in controversy.” In Shriver’s Lessee v. Lynn, 2 How. U. S. 43, it is said : “A decree without notice would be treated as a nullity.” In Webster v. Reid, 11 How. 437, it was said: “ When a judgment is brought collaterally before the court as evidence, it may be shown to be void’ upon its face by a want of notice to the person against whom judgment was entered, or for fraud.” See, also, Hollingsworth v. Barbour, 4 Pet. 466; Whittaker v. Murray, 15 Ill. 293; Downer v. Shaw, 2 Foster, N. H. 277 ; Lamar v. Gunter, 39 Ala., 324. Governed by the principles declared in Hunt v. Ellison, supra, and Hall v. Williams, 6 Pick. 232, which we approve, we hold that the settlement and decree in this case, considered alone, are not void on their face. The presumptions we entertain in favor of the correct exercise of a general jurisdiction, lead us to this conclusion. If the record showed that Hatchett had actual personal notice, or that he was present at the settlement, we would hold this presumption conclusive. The record contains no such proof or recital. It fails to show that any personal notice was ordered or given, and it fails to show he was present at the settlement. The settlement and the decree affect the estate of Glenn very seriously. If Hatchett had had notice of it, and the estate suf-. fered in the settlement by reason of his failure or neglect to attend, we will not say he would not thereby have fastened a liability on himself. In his petition, be not only denies having any notice, but he avers “he did not in fact appear on said settlement,” and that “ he had no knowledge of such settlement, until long after the same purports to have been made.” If this be true — and in this proceeding we must — 32 — regard it as true — the presumption of notice or knowledge of the settlement is overturned, and the decree of the Probate Court is void. We think the practice pursued in this case, of praying to have the decree revoked and annulled in the court in which it was rendered, an eminently proper one. It retains the proceedings in the Probate Court, where speedy and inexpensive justice can be administered, without incurring the expense and delay which would attend a resort to another tribunal. We confine this remark for the present, however, to proceedings in the Probate Court. But see 2 Brick. Dig. 140, § 137. It results, that the decree of the Probate Court in Hatchett’s case must be reversed, and the cause remanded. As to Mrs. Brickell’s appeal, we need say but little. The reversal of the judgment pronounced in the main cause of Hatchett, administrator, must of necessity carry with it a reversal of the dependent decree against Mrs. Brickell and all other parties. We feel it our duty, however, to make some comments on sections 2644-5-6 of the Code of 1876. They are, in terms, confined to estates “ in the hands of an executor or administrator undistributed,” and “ where no final settlement of his administration or distribution has been made.” In the decree, he is to be allowed “ credit for such expenses.” No provision for a decree against the succeeding administrator. By section 2645, he is required “ to file, with his account for final settlement, a separate account for the amounts so paid by him for such minor.” Nothing is said in these sections about notice to the distributee thus sought to be charged; but, on principle, we hold that, in such cases, the publication should give notice of such claim, and that such separate account had been filed. — Brown v. Wheeler, 3 Ala. 287; Wilburn v. McCalley, at the last term. We have not alluded to the act “To authorize Probate Courts to render decrees in certain cases,” approved August 12th, 1868. — Pamph. Acts, 44. That statute is not carried into the Code of 1876, and it is therefore not now of force. We are not able to perceive on what principle the Probate Court can make to Mrs. Billingslea, in her settlement with the administrator de bonis non, any allowance, beyond assets in her hands, for expenditures she may have made for the distributees. As we understand from the record, the chief, if not the entire remaining assets, passed out of the control of Mrs. Billingslea, and into the hands of the administrator de bonis non. There is no statute which authorizes a decree in favor of the outgone administrator, either against the administrator de bonis non, or the distributee, for moneys — 33 — thus expended. In tbe absence of some agreement for tbe payment of any balance due from the distributee who has been thus advanced to, it would seem that the Probate Court is powerless to grant relief in any form, other than by allowing a credit against a balance, ascertained to be in the hands of an outgone administrator. If there is any relief in such a case as this — and it would seem there should be — it must be sought elsewhere. — Reaves v. Garrett, 34 Ala. 558; Benagh v. Turrentine, 60 Ala. 557. Beversed and remanded. Bbickell, C. J., not sitting, being interested in the settlement.