O'Daniel v. Gaynor

McCLELLAN, J. Appeal f.iom decree sustaining demurrers to the bill. Win. I). O’Daniel having died in March, 1889, the appellant, his surviving widow, took in his homestead a life estate only, subject to be enlarged into a fee upon the ascertainment of the insolvency of his estate.' — Code 1886, § 2543; O’Rear v. Jackson, 124 Ala. 298, 26 South. 944. A re-examination of that opinion confirms ’its correctness. Section 2543 of the Code of 1886 is governing in this case; and its last clause provides that the widow and minor children may retain the homestead until it is ascertained whether the estate is solvent or insolvent; and if insolvent, they take the fee in the homestead. This court has several times declared that the ascertainment requisite to vest the. fee in the widow and children, divesting it out of the heir, is a judicial ascertainment.—McDonald v. Berry, 90 Ala. 467, 7 South. 838; Kilgore v. Kilgore, 103 Ala. 614, 15 South. 897; Munchus v. Harris, 69 Ala. 506; Baker v. Keith, 72 Ala. 121; Smith v. Boutwell, 101 Ala. 373, 13 South. 568. It will be ob [210] served, then, that the condition precedent to the vesting of the fee in the beneficiaries under the statute is not the fact of insolvency, but the judicial declaration thereof — an important distinction. We are clearly of the opinion, and so hold, that the judicial ascertainment of. insolvency necessary to meet the condition of the statute is not wholly dependent upon the initiative report to that end'by the personal representative, though, where he is satisfied such is the case, it is bis duty to the beneficiaries of this statute, as well as to the estate, to so report. As we understand the statute, the judicial ascertainment requited is not limited to a decree consequent only on report by the personal representatives. Pn fact, to so decide would virtually read into the statute a proviso not written there. Hence, in a proper case, a court of chancery will ,in the absence of adequate remedy in the probate court, if the administration of the estate is pending there, grant relief, to the purpose that the enlarged estate in the homestead may be vested. The bill invokes the operation of the equitable maxim that “equity regards and treats that as done which in good conscience ought to be done.”—1 Pom. Eq. § 364. Viewing the bill with the utmost- favor, the field asserted for its operation is the fraudulent failure or refusal of the personal reprsentative to report the estate insolvent, as it in fact was, until the statute of limitations had barred the only claim working such insolvency. In discussing the meaning,and effect of the maxim in 1 Pom. Eq. § 365, it is said: “In the first place, it should be observed that the principle involves the notion of an equitable obligation existing from some cause; of a present relation of equitable right and duty subsisting between two parties — a right held by one party, from whatever cause arising, that the other should do some act, and the corresponding duty, the ought, resting upon the latter to do such act. Equity does not regard and treat as done what might be done, or what could be done, but only what ought to be done.” When it is considered that the condition precedent to the enlargement of the homestead estate into the fee is the judicial as [211] certainment of insolvency of the estate, and not the fact of insolvency at any time, it is apparent that the maxim has no application in this case. The obligation may be conceded to have rested upon the personal representative to report the estate insolvent when indeed it was, yet the fulfillment of that obligation could not avail to meet the condition fixed in the statute. The maxim pertains, not to what might be done, nor to what could be done, but to what ought to be done. __ How could it be conclusively preseumed that, though the report of insolvency was made, the probate court would have judicially declared the estate insolvent. It might not have done so. But there is, we think, a more potent reason for the denial of the application of the maxim to this case; and that is that the principle expressed in the maxim has no sort of influence when related to judicial action. The cases cited in brief are cases only involving agreemenls or situations where “good conscience” dictates certain action as between parties. A rather diligent search has not 1 cwarded us with any instance 'where equity has regarded and treated as done any judicial act, however meritorious the circumstances. However virulent may have been the fraud of the administrator, such fraud certainly cannot afford ground or reason to treat and regard as passed a decree of insolvency when in deed and fact such decree was not entered. The estate of O’Daniel not having been judicially declared insolvent, the widow’s estate in the homestead has not been enlarged. into a fee. The heirs, being necessary parties to this bill to declare the estate insolvent, are entitled, on that issue, to assert by demurrer the bar of the statute of limitations of the alleged claim against the estate.—Love v. Butler, 129 Ala. 531, 30 South. 735; Huntsville v. Ewing, 116 Ala. 576, 22 South. 984. It follows that the decree sustaining the demurrers was properly rendered, and is therefore affirmed. Affirmed. Tyson, O. J., and Dowdedl and Anderson, JJ., Concur.