Hall v. Santangelo

McCLELLAN, J. This appeal, prosecuted by the personal representative, brings up for review the ruling of the probate court in disallowing certain items of credit claimed by the administrator on his final settlement. The cross-assignment of error by the appellees cannot be considered, since it does not appear that a cross-appeal was taken, nor is there the requisite consent by the appellant for the cross-assignment of errors or a joinder in error therein by the appellant. — Rule 3, S. C. P., Code, p. 1507. The items thus disallowed as credits, which appellant’s counsel insists, in brief, were erroneously so treated, were these: |325, paid R. L. Leatherwood for services as attorney: |32.50, paid the administrator as commissions. The intestate was an Italian subject. He was killed while in the service of the Tennessee Coal Company. The claim for this company’s negligently causing his death was all the value left by or surviving intestate. A statement of the circumstances attending the contest over the right to administer in the premises will be found in Carpigiani v. Hall, 172 Ala. 287, 55 South. 248. Our ruling in support and justification of a consular agent’s right and privilege in respect of estates left, in their consular territory, by subjects of their governments, appears not to have commended itself to the Supreme Court of the United States. See Rocca v. Thompson, 223 U. S. 317, 32 Sup. Ct. 207, 56 L. Ed. 453. At any rate, counsel for appellant states, that the Carpigiani contest was not pressed beyond the judgment which this court rendered in revision of the lower — 450 — court’s action upon demurrers to Carpigiani’s petition. The heirs at law and next of kin of intestate (appellees) appear to have entered upon Hall’s accounting as a final settlement of the administration. The theory upon which the probate court seems to have proceeded to its conclusion, in disallowing these items, was that Leatherwood and Hall conceived and executed a fraudulent scheme or, purpose to secure dominion or control over the administration of the estate of the intestate, wherewith they would and did attend to the institution, by Leatherwood as attorney, pf an action, for his death, against the company in the service of which he was Avhen he met his death. The intestate, Prank Santangelo, died March 30, 1910. On April 15, 1910, E. D. Hall (appellant) and Virga Giuseppe filed a petition drawn by Leatherwood, praying their appointment as administrators of intestate’s estate. On April 19, 1910, Carpigiani, the Consular Agent, filed his petition, seeking the removal of Hall and Virga as administrators and the revocation of the letters granted upon their petition. In their petition for letters it Avas averred that Virga was the cousin, friend, and nearest relative in America of intestate. ■ On April 30, 1910, Virga filed his answer to the petition of the Consular Agent, in which he admitted that he was not related in any degree to the intestate; and set forth that Hall came to him and asked his consent to be appointed administrator of the estate of intestate, saying he (Virga) “could make good money out of it”; that,he (Virga) could not read English; that he came to Birmingham with Hall, Avho took him to Leathenvood’s office, Avkere a paper was presented for his signature in order, it was said to him, to get his appointment as administrator; that he did not knoAV the contents of the paper which he signed; that he did — 451 — not knoAV it contained the nntrue statement of his relationship to intestate, and therein and thereby consented to his removal as administrator of the estate. On May 1, 1910, LeatherAVOOd executed, to Hall a receipt for $325, being one-half of the amount collected by LeatherAvood from the Tennessee Coal Company in compromise and settlement of the suit brought, it seems, on April 27, 1910, by Hall as administrator for negligently causing intestate’s death. At this time, Avhen the suit for damages was instituted, and Avhen it was settled as stated the Carpigiani petition was on file and pending in the probate court, and notice thereof had been served upon Leatherwood as attorney for Hall and Virga. Within five days after the service of this notice of the filing of Carpigiani’s petition and of its setting for hearing April 30, 1910, the suit for damages was commenced. In support of their contention the heirs offered in evidence, among other testimony, the verified petition of Hall and Virga, the petition of Carpigiani, the answer of Virga before mentioned, the demurrer of Hall to the petition of Carpigiani, the decree of the probate court sustaining Hall’s demurrer to that petition, the bond made by Carpigiani for his appeal (172 Ala. 287, 55 South. 248), the certificate of reversal issued by the clerk of this court, the opinion of this court rendered on Carpigiani’s appeal, and a docket of the Jefferson probate court from April 1, 1910, to December 15, 1910; “said docket showing that letters of administration had been granted to E. D. Hall (appellant) on the estate of 47 decedents during that time,' the first being that of Frank Santangelo, the last letters being granted on July 22, 1910. On this docket the name of R. L. Leatherwood was entered as attorney for Hall, contestants stating when the docket was offered that it was offered — 452 — for the purpose of showing the number of administrations Hall had been in during that period at Leather-wood’s instance.” So far as the appeal bond, 'the certificate of reversal, and the opinion of this court are concerned, they were without the remotest bearing upon the issue of fact upon which the allowance vel non of these two items appears to have been made to depend. Indeed, these documents were so entirely immaterial to the issue of fact, it is not possible for them to have had any effect whatever upon the casting of the judicial conclusion effected by the court in disallowing these items. We therefore feel no hesitancy in affirming that their reception, though assumed to be improperly in the case, was without the slightest prejudice to the appellant. On that appeal, as counsel for appellant points out in brief, issues'of law, only, were presented and decided; and those so determined were, as counsel states, left without further invocation or application. In controversies in which fraud is involved, a Avide range of inquiry, and of evidence to satisfy it is allowed, for, it is said, it is seldom that fraud can be the subject of direct, positive evidence.- — Nelms v. Steiner Bros., 113 Ala. 562, 573, 22 South. 435. It is rarely possible to prove fraud “except by a comprehensive and comparative view of the actions of the party to whom it is imputed.” — Snodgrass v. Bank of Decatur, 25 Ala. 174, 60 Am. Dec. 505. The scheme and purpose imputed, as indicated, to Leatherwood and Hall, Avas of an illegal and fraudulent character; and, if its existence was established, the vitiating effect of it upon the right to these asserted items of credit upon the administrator’s accounting is, we think, too clear to admit of doubt. To affirm to the — 453 — contrary would be to permit the offender to profit by his own wrong — a result not to be sanctioned. Nor can the vitiating effect of a fraudulent action (if established) be negatived or neutralized by the assumption that no apparent injury attended the wrongful conduct. The measure and consequence of such a wrong is found in the act, fraudulently motived, not in the result therefrom. One who has criminally appropriated the property of another in a burning building or on a sinking ship would not be heard to claim exoneration or exculpation upon the ground that the property thus appropriated would, in fact, have been lost to the owner. Touching the relevancy of facts and circumstances upon an issue of fraud, in Nelms v. Steiner Bros., it was remarked that “their admissibility is dependent, not upon their force, but upon their bearing”; that there is, perhaps, “no matter of more difficulty, presented to the court, than to draw the precise line which, upon an issue of fraud, separates facts or circumstances which are relevant from those which are irrelevant.” We find no error in the admission of the other items of evidence noted before. The documents filed by Hall and Yirga, by Yirga alone, by Carpigiani, and by Hall alone, in the administration’s inception and upon its contest, bear directly upon the issue litigated. They serve to throw light upon — to explain — the acts of Leatherwood and Hall, particularly when referred to the celerity with which the action for damages for intestate’s death was instituted; upon Leatherwood’s knowledge of falsity of the averment of Virga’s relationship to the intestate in the petition for their appointment which Leatherwood drew; upon the reflection that a course of conduct not consistent with that naturally, normally, to be expected from one entertain — 454 — ing fair purposes, was pursued by Leatberwood in tbe premises. The docket evidence mentioned was also properly admitted. It tended to show tbe relation, with respect to what appears to bave been almost a business of administrations, existing at and about tbe time tbis administration was begun, between Leatberwood and Hall. When tbis documentary testimony is considered in connection with other testimony tending to show that Hall furnished to these very numerous administrations little, if anything, but tbe use of bis name, its relevancy upon tbe issue is made even more clear. Other grounds in justification might be added; but tbis will suffice. All of tbe evidence upon tbe issue stated has been carefully read and considered by tbe court. Thereupon our conclusion accords with that attained by tbe court below. Its decree is affirmed. Affirmed. All tbe Justices concur.