Pinney v. Werborn

STONE, J. When Werborn, the executor, filed his account-current for final settlement, he filed therewith, as it was his duty to do, a sworn statement, specifying “the names of the [62] heirs and legatees,” &c. — Code of 1876, § 2509, snbd.*3. In that affidavit be set forth, that his testator left surviving him his widow, Amanda M., now Mrs. Pinney, and an infant child, Adolpha Solomon, still an infant, but over fourteen years of age. A guardian ad litem was afterwards appointed for the infant, who filed many exceptions to the account-current. The executor thereupon moved the court to revoke the appointment of the guardian ad litem, and to disallow and reject the exceptions filed by him, on the alleged ground that the will gave the entire property to the widow, and hence the infant child had no interest in the settlement. The court granted these motions, and ruled that “Adolpha Solomon, daughter, a minor over fourteen years of age, is not, under the construction of the will of the deceased, a necessary party to the settlement.” "We are required to consider this case in the absence of a bill of exceptions, as the one found in the record was not signed by the presiding judge within the time allowed by law. We have decided it is no part of the record. A paper, purporting to be a will signed by Adolph Solomon, is found in the transcript, but there is no evidence of its probate. There is nothing on the face of the proceedings which makes it a part of the record, and we are not informed why it is in the transcript. It is contended for appellant, that if we treat said will as a part of the record, then we must reverse the orders of the Probate Court noted above, because the will makes Adolpha Solomon devisee and legatee, to take effect at her mother’s death, and she was therefore a proper and necessary party to the settlement; and the argument goes further, and claims that, if we treat the will as no part of Pie record, then Adolpha was a distributee in the estate o'f her father, and therefore interested in the distribution. So, taking either horn of the dilemma, it is claimed that the Probate Court erred. We feel constrained to hold, that the paper purporting to be a will is no part of the record in this cause, and that it can not be looked to for any purpose. The other branch of the argument is equally faulty. It asks us to assume that Adolpha was a distributee, or legatee under her father’s will. If the record showed that Adolph Solomon died intestate, or if it were silent on the question, we would know in the one case, and possibly presume in the other, that Adolpha, his daughter, was entitled to distribution, and therefore interested in the settlement. But the record shows affirmatively that he did not die intestate. Werborn is every where styled executor, and the decree of the court affirms that Mr. Solomon left a will. Discarding from our consideration the paper found in the record purporting to be a will, we have for sole guide the recital in the decretal order of the court, that “Adolpha Solomon, daughter, is not, under the construction of [63] the will of the deceased, a necessary party to the settlement.” We can not presume error, and make it a basis for reversal. — 1 Briclc. Dig. 681, §§ 118, 119, 120. To sustain the ruling of the court, we must presume the existence of a will, which, properly construed, gave to the child no interest in the estate. If the paper found in the record be a true copy of Mr. Solomon’s will, we feel bound to express great doubt of the correctness of the ruling in the court below. The will places the entire property in trust, in the hands of the executors, after first paying testator’s debts. It then gives the use, enjoyment and increase of the estate to his wife, Amanda M., “for the support, maintenance and education of herself and children as a family, . . . but she was not to dispose of any part of the same in any way, nor subject it.” At the death of the wife, the absolute ownership of the property was to go to his children or child. The will confers on the executors other delicate trusts. Now, it may be conceded that, to the extent of collecting the assets, and paying the debts, the duties of the personal representative were executorial, and the Probate Court had jurisdiction to settle his accounts to that extent. The widow, Mrs. Pinney, being a party to that settlement, may be bound by it, as far as executorial duties are concerned. But how about the other questions? The paper, if the will, confided to the executor many trusts that are personal in their character, which may not expire when his duties as exemtor shall cease to be necessary. Over these trusts has the Probate Court any jurisdiction? Adolpha, the daughter, was not allowed to appear as a party to the settlement. Is she concluded? It would seem that only the use, enjoyment and income of the estate, was given to the widow, for the maintenance, &c., of herself and family. Iiow about the corpus? Was there any authority to deliver any of that to.the widow? And can there be a settlement of the trust, until, by the terms of the will, the child or children shall become entitled to the absolute ownership; unless the executor and trustee resigns, is removed, or some other ground exists for equitable interposition?—Hitchcock v. U. S. Bank, 7 Ala. 386, 437; Camp v. Coleman, 36 Ala. 163; Perkins v. Lewis, 41 Ala. 649; Ex parte Dickson, 64 Ala. 193; Mason v. Pate, 34 Ala. 379; Lee v. Lee, 55 Ala. 590. We have felt it our duty to make the above suggestions and inquiries, because, to the extent the decree of the Probate Court was without jurisdiction, that decree will be no protection to the trustee in any future litigation. Affirmed.