Foxworth v. White

BRICKELL, C. J. The first and second items of the will of the testatrix contain specific bequests. The third and fourth items read as follows: “ Item thvrd. My will and desire is, that the balance of my negro property, mules, stock of all kinds, mill, gin, &c., which I now or may hereafter own at my death, shall be kept together on my plantation, for the term of ten years, and used and worked thereon; and the moneys therefrom, after paying the expenses of the same, to go to the education of all my beloved brother F. G. Foxworth’s children, except Dudley, Ellen and Cordelia.” u Item fourth. It is further my will and desire, at the expiration of ten years, all my real estate of every character and description, together with all my personal and perishable property, not specifically hereinbefore given and bequeathed to Ellen and Cordelia Foxworth, shall be sold and equally divided between the children of F. G. Fox-worth (except Ellen and Cordelia), and the children of my nephew Caleb E. White.” The principal question now presented is, whether by these items of the will testamentary trusts were not created, and powers were not, conferred, converting the executor into a trustee, and excluding the jurisdiction of the Court of Probate to take cognizance of his administration of them. The statute, in very general terms, confers on the Court of [229] Probate original jurisdiction of “the settlement of the accounts of executors and administrators.” — Code of 1876, § 691. The •duties of these representatives, in the course of administration, are, in many respects, defined and declared, and there are many powers they may, by the decree of the Court of Probate, be authorized to exercise, which could not have been devolved upon them by any court at common law, and which, if conferred by will, created trusts strictly of equitable cognizance. Though the grant of jurisdiction to the Court of Probate is expressed in general terms, there is a class of cases, involving testamentary trusts and powers, in which it has not jurisdiction to settle the administration of an executor. This class of cases can not, perhaps, be very accurately described. In Harrison v. Harrison, 9 Ala. 478, it was said, the Orphans’ Court, the predecessor, and of like jurisdiction with the Court of Probate, could not take jurisdiction of trusts created by will, “when the litigation is between the cestuis que trust and the executor as trustee; or, in other terms, when the executor, in addition to his powers in that capacity, is also invested with a discretion, and confidence is reposed in him as trustee.” In all.the cases bearing upon this question, which have been regarded as excepted from the general jurisdiction of the court to settle the accounts of executors or administrators, there was, by the will of the testator, the union in the same person of the relations of trustee and executor — different and distinct rights and duties meeting in him. The trusts distinguishable from the execu-torial duties, involving discretion, were personal, and most generally of such a character that they could have been assumed and executed, if the executorship had not been accepted. Portis v. Creagh, 4 Port. 232; Leavens v. Butler, 8 Port. 380; Billingsley v. Harris, 17 Ala. 214; Harrison v. Harrison, supra; Ex parte Dickson, 64 Ala. 188. The keeping of estates together by executors or administrators, under orders of the Court of Probate, especially when the estate consisted of a plantation — of lands, slaves, stock, farming utensils, implements and appliances — at the time the will of the testatrix was executed, a.nd for a long period prior thereto, was a policy favored by the statutes; and testamentary provisions for the same purpose were of frequent occurrence. The sales of lands, or of personal property, for partition between legatees or devisees, it was a duty of the executor (not having power under the will) to obtain an order of the Court of Probate to make, when otherwise an equitable partition could not be effected. It was in view of the policy and usages then prevailing, that the testatrix devolved upon her executor the duty of keeping her estate together for the same period the statutes empowered the Court of Probate to authorize it to be kept to [230] gether, and, upon the expiration of that period, the duty and power of making sales of it to effect distribution to her legatees. The duties and powers are executorial — they are not mere naked trusts resting in personal confidence. These powers-could not have been exercised until after the probate of the will, nor without an acceptance .of the office of executor. Resulting from the office of executor, and charged upon the executor as executor, an administrator cum testmnento annexo would have succeeded to them. Eor the general rule is, that the duties of an executor resulting from the nature of his office, and charged upon him as executor, devolve on ah administrator cum testa-mento mmexo, where the authority is not necessarily connected with a personal trust or confidence reposed in him by the testator.—Farwell v. Jacobs, 4 Mass. 634; Commonwealth v. Forney, 3 Watts & Serg. 353. We are of the opinion, the jurisdiction of the Court of Probate to settle the adminstration of the executor was plenary — that there are no trusts involved of which it could not take cognizance arid enforce. 2. The jurisdiction of the court having attached, a final decree having been passed, embracing the subject-matter of the bill, so far as relief is claimed because of the administration of the executor, in the absence of fraud, or some other special cause for interposition, a court of equity can not intervene and reopen the settlement.—Waring v. Lewis, 53 Ala. 615; Otis v. Dargan, Ib. 178. 3. The petition for the sale of lands avers the insufficiency of the personal property for the payment of debts, — the fact upon which the jurisdiction of the Court of Probate to order a sale depended. The jurisdiction attached upon the filing of the petition, and errors or irregularities, if any occurred, in the course of the proceedings, will not affect the validity of the decree of sale, when drawn in question collaterally.—1 Brick. Dig. 939, §§ 353 55. It can not now become a matter of inquiry, fraud not being imputed, whether the debts or any of them, for the payment of which the sale was decreed, were properly and legally chargeable on the lands. In the rendition of the decree, the Court of Probate, having jurisdiction, is presumed to have adjudged every fact necessary to its validity. That there were debts, to the payment of which the lands were subject; and that the personal assets .were insufficient for their payment; were facts adjudged and determined, and finally adjudged and determined.—Florentine v. Barton, 2 Wall. 210; Lanford v. Dunklin, 71 Ala. 594. 4. It can not now be doubted, that a purchase by an executor, either directly or indirectly, at a sale made by himself, whether he sells under an order of court, or under a power in a will, will be set aside absolutely at the mere election of par [231] ties in interest, seasonably expressed. An exception to tbe general rule was, at an early day, applied to an executor or administrator having an interest, purchasing chattels at his own sale, for full value, if the sale was fairly conducted.—Brannan v. Oliver, 2 Stew. 47; Julian v. Reynolds, 8 Ala. 680; McLane v. Spence, 6 Ala. 894; McCartney v. Calhoun, 17 Ala. 301; Montgomery v. Givhan, 24 Ala. 568; Andrews v. Hobson, 23 Ala. 219; Charles v. DuBose, 29 Ala. 367. Whether the exception should be applied to sales of chattels only, has not been decided; though it was said in Calloway v. Gilmer, 36 Ala. 358, the court was not inclined to the limitation. It is not necessary now to consider that question; for the executor was without any interest, which would have brought him within the exception, if the sale had been of chattels. Nor was he ■the purchaser at his own sale, but a subsequent purchaser from the purchaser, immediately after the sale. After a fair, actual sale to a third person, a trustee may buy of his own vendee, and the purchase will be free from the infirmity of a purchase made at his own sale, and he will acquire a title the oestuis gue trust can not impeach. The transaction will, however, be jealously scrutinized by a court of equity; all circumstances of suspicion attending it must be neutralized, by clear and convincing evidence, and every presumption of indirection must be repelled. James v. James, 55 Ala. 525. Taking the answers as true, there was a fair, actual sale of the lands under the decree of the Court of Probate, at which a purchase for the value of the lands was made in the name of Erwin. . It was not then contemplated that there should be a re-sale to the executor. The re-sale was a subsequent, independent transaction, into which, the executor was reluctant to enter, and was only induced to enter upon promises of aid in cultivating the lands in the future,, to enable him to repay the debts, which he had accepted in payment of the purchase-money. If these facts be true, all suspicion is removed from the transaction, and all presumption of indirection is repelled. The cause was heard on bill and answers, without testimony ; the oaths of the respondents to the answers were not waived, and they must be taken as true, so-far as responsive to the bill. — Code of 1876, § 3786. 5. A testator has a power of disposition almost unlimited,, as to so much of his property as is not necessary for the payment of his debts. The rights of creditors not being infringed (and as to them the provisions of the will are presumed to have been intended to be subordinate), he may, if he does not offend positive law, or a well known public policy, make that disposition of his estate he may choose; and it can not be avoided though it may to others appear to be manifestly unwise, injudicious, or capricious, or unjust, or ungenerous.—Atwood v. [232] Beck, 21 Ala. 590. The business or trade in which he may be •employed, is not, by operation of law, transmissible to his personal representative, except to a very narrow, limited extent; and a continuance of it by the representative is a breach of duty, from which only liability and loss to him can result. The testator may authorize its continuance; and if it is authorized, and the executor assumes to exercise the power, lie renders himself personally liable for debts he may contract in the continuance of the business.—Ex parte Garland, 10 Vesey, 119; Morrow v. Morrow, 2 Tenn. Ch. 549. Those with whom lie deals, can not proceed directly against the estate of the testator. The estate is bound, however, to the indemnity of the executor for all debts and expenses properly incurred in the continuance of the business, when the continuance is in the exercise of a power conferred by the will, or under the authority of a court of competent jurisdiction. If he is not in default— if he is not, on a just settlement of his accounts, indebted to the estate; if the debts incurred by him are in truth advances properly made by him in the prudent exercise of the power, the creditors dealing with him have an equity to be subrogated to his right of indemnity from the trust estate.—Steele v. Steele, 64 Ala. 438, and authorities cited. Assuming it to be true that the purchase-money of the lands was paid largely by the payment of debts the executor had incurred in keeping the estate of the testatrix together under the power conferred "by the will, or under the orders of the Court of Probate (which we are inclined to regard as superfluous and unnecessary), the necessity and propriety of the expenditures, for which the debts were contracted, was matter which could have been litigated on the final settlement of the executor in the Court of Probate. The decree of the court rendered on the settlement, until it is successfully impeached for fraud, or reversed by an appellate court, is a conclusive adjudication of the necessity and propriety of these expenditures, and that for them the executor was in advance to the estate.— Waring v. Lewis, supra; Otis v. Dargan, supra. A court of equity would have subrogated the creditors to the right of the executor to indemnity for the advances. The parties, by the arrangement, simply accomplished that which a court of equity would have decreed ; and that it was their right and duty to do without the delay and expense of litigation. The decree of the chancellor is not consistent with these views; and it must be reversed, and the cause will be remanded.