Tayloe v. Bush

BBICKELL, C. J. An executor or administrator is not ■only authorized, but is required to make partial or annual settlements of his administration. — Code of 1876, § 2508. When such settlement is made in the mode prescribed by statute, it is not upon the final settlement conclusive, but every item of account included in it may be re-examined. The statute, however, attaches to it the presumption of correctness, and the “ laboring oar” is upon the party impeaching and proposing to re-examine it.—Code of 1876, §§ 2531-32 ; Holman v. Sims, 39 Ala. 709 ; Jones v. Jones, 42 Ala. 218. The errors supposed to lie in the partial settlement made by the appellee as administrator in chief (the settlement having been made in strict conformity to the-statute), depend mainly upon the construction of the written agreement made between the intestate [436] and Thomas. This is a pure question of law, which may well be regarded as open and subject to contestation upon the final settlement, the presumption of correctness attaching to the partial settlement prevailing only as to matters of fact, the parties in interest not having appeared and litigated either questions of law or of fact.—Duke v. Duke, 26 Ala. 673. After a careful examination of the agreement, though it is very inartificially drawn, and there is a want of precision and ‘ accuracy in its expression of the relations and rights of the parties, we are of opinion that it was not their intention to create a partnership, but rather a tenancy in common of the products of cultivation of the plantation of the intestate, of which Thomas was entitled to possession and control, and, for his services and skill in its management, was entitled to one half of the net profits. In determining whether a partnership was created, the intention of the parties is the single question for consideration. There is a well recognized distinction between cases where third persons have dealt with parties associated in business as partners, and controversies between the parties themselves, or controversies in which the rights of such persons are not involved. In the one class of cases, a partnership may arise by mere operation of law, without an inquiry into, or in direct opposition to the expressed intention of the parties. In the other class of cases, the question is as to the intention of the parties, and when the agreement or contract is in writing, the intention must be collected from its words ; and if there is ambiguity in its terms, to aid in its construction, resort must be had to the circumstances under which it was made, the relative situation of the parties, the occasion giving rise to-the contract, and the objects and purposes to be accomplished. Emanuel v. Draughn, 14 Ala. 303 ; Couch v. Woodruff, 63 Ala. 466; Aubrey v. Frieze, 59 Ala. 587. The test of a partnership generally, whether the controversy is between the parties, or quoad third persons, is, whether there is a community of interests, a participation in losses and profits.—Howze v. Patterson, 53 Ala. 205 ; Aubrey v. Frieze, supra. The rule is not without its exceptions; and when a party is without interest in the capital or business, and is to be compensated for his services from the profits, or rewarded by the profits, or what is to depend upon the result of a common adventure or enterprise, the rule is without application.—Richardson v. Hughitt, 76 N. Y. 55 (32 Am. Rep.) 267; Emanuel v. Draughn, supra; Couch v. Woodruff, supra. This contract is within the exception ; the participation of Thomas in the profits was simply intended as compensation to him for his skill and services as the manager of the stock and plantation, and in the cultivation and gathering of the crops. [437] The parties standing in this relation, crops having been planted and in the cours'e of cultivation at the death of the intestate, it was the duty of Bush, as administrator in chief, prescribed and imposed by the statute, to continue the cultivation, to gather and prepare them for market, and to make sale of them.—Code of 1876, §§ 2439-41; Loeb v. Richardson, 74 Ala. 311. The law casting upon him this duty, the just and reasonable expenditures, to which he was compelled in the performance of the duty, must, of consequence, be reimbursed to him from the estate in his hands for administration. True, these expenditures seem to have exceeded largely the proceeds of the sales of the crops. But there was n.o want of good faith, or of prudence, or of diligence imputable to him. The unfortunate and unprofitable result was attributable to natural causes, destructive of other crops in the same section, against which, however, foresight and judgment could not guard. A personal representative, keeping within the line of duty and authority, exercising reasonable care and diligence, is not an insurer of events or of results ; he is a guarantor only of his own fidelity. Gould v. Hays, 19 Ala. 438. There was an entire want of evidence to repel the presumption of correctness, in point of fact, of any item embraced in the partial settlement, and in that event it was not re-examinable. It stood protected and unimpeached by the presumption which the statute attaches to it. The items for payments made to or for the witnesses Noel and Hezekiah were within the presumption. It must be conceded that their evidence as to the contract in writing between them and the intestate was secondary, and inadmissible to support the credits, if there had been evidence authorizing a re-examination of them. But as the case is presented by the bill of exceptions, the evidence was merely redundant and superfluous; without it, the probate court was bound to the allowance of the credits, or rather to suffer the partial settlement to stand as correct. The admission of evidence, which is merely redundant and superfluous, is not an error available to reverse a judgment; for the plain reason that it is incapable of working injury.—Fant v. Cathcart, 8 Ala. 725 ; Bishop v. Blair, 36 Ala. 85 ; Jemison v. Dearing, 41 Ala. 283. There is no error in the record prejudicial to the appellant, and the decree of the court of probate must be affirmed.