Effinger v. Richards

Smith, C. J., delivered the opinion of the court. The appellee, as the legal representative of Henry R. Coulter, deceased, presented the account of his intestate,' as one of the administrators of the estate of George W. Henderson, deceased, for settlement and allowance, in the Court of Probates of Madison county. The account was contested by the appellant, Francis A. Effinger, as guardian of the infant daughter and sole heir-at-law of said Plenderson, and by Mrs. Effinger, as distributee and co-admi-nistratrix of the estate. They took various exceptions to the account, and, upon its allowance, as adjusted and restated, they prosecuted separate appeals. The error, principally relied on for a reversal of the decree, is, that the court refused to charge the appellee with the proceeds of the sale of certain real property, which, it is alleged, was received by his intestate. It appears, from the record, that administration of the estate of said Henderson was granted, jointly, to his widow, Mrs. A. M. Henderson, and the said Coulter; that Mrs. Henderson afterward intermarried with the appellant, E. A. Effinger; and that Coulter died before the estate was settled up — in fact, that but one account, not intended to be a final, but only a partial, settlement of the estate, was ever presented. That account was rendered in December, 1853, after the marriage of Mrs. Henderson with the appellant, Effinger; and purports to be the joint account of said Effinger — 549 — and wife, and the said Coulter, as the administrator and administra-trix of the deceased’s estate. The account thus made out, contained a list or inventory of assets, belonging to the intestate’s estate, consisting of claims due upon open account, drafts, &c., and of money received from persons indebted to the estate, which had come into the possession of the administrators after the return of the inventory. Among the assets thus reported, was the sum of six thousand dollars, stated to have been received from Mrs. A. M. Henderson (one of the accountants), for the sale of the one-third interest of George W. Henderson, deceased, in the Artesian Springs. It was insisted that this particular sum, should be charged as a debit against the appellee, in the settlement of his intestate’s account, as administrator of Henderson’s estate; and the refusal of the court to do so, is the subject of the exception above alluded to. In the account, this sum is entered as a charge against the administrators. The question, therefore, raised by the exception, involves a consideration of the character, and of the effect to be given to the annual, or partial, settlements of the estates of deceased persons, made by their executors or administrators. These settlements are never made upon notice to the parties, creditors, and distributees, interested in the decedent’s estate. The order, therefore, entered in a proceeding of this character, is neither final nor conclusive, in regard to them; it amounts to only frima facie evidence of the correctness of the account. Hence, upon an application for a final settlement of an administration account, the creditors and distributees have a right to object to any previous settlement; and, upon exceptions filed, pointing out the errors, to have the whole account corrected, according to the truth. But this right has not been given, by law, to the executor or administrator; and for that reason, it is insisted, that the order made, in the allowance of the annual accounts of executors and administrators, is final and conclusive, as to them. Manifest reasons require the recognition of this principle, as the general rule; but the reasons are equally manifest, why it should not be held to apply, with undeviating strictness, in all cases, and under all circumstances. The object of all law is the dispensation of strict justice be — 550 — tween the parties who invoke its assistance. And, to that end, the forms of procedure in courts, and the principles of evidence, have been moulded and established. In the administration of the estatds of deceased persons, the legal representative acts in the capacity of an officer of the Court of Probates. The acts of the executor or administrator, in a certain sense, are the acts of the court. Whenever sanctioned, they are, unquestionably, so far as the rights of all parties are concerned, to he regarded as its acts. Hence, whenever, by an order of the court, manifest injustice would be done to any party to the proceeding, if such order is held air adjudication of the subject, conclusive upon all parties, reason and justice require that such an effect should not be given to it. For example, when an inaccuracy in a partial settlement prejudicial to the executor or administrator, arising from sheer inadvertence or oversight, or from palpable mistake or miscalculation, no principle of justice or sound policy requires, that he should be bound by the order allowing the account, or estopped by the account itself. But while these exceptions to the general rule, applicable to the accounts of executors and administrators, are recognized, no correction should be allowed, except in cases in which the error, alleged to have arisen from oversight, mistake, or miscalculation, is clearly established, and under circumstances where no possible injury could result to the adverse parties. But in this case the contest is not so much whether the administrator, by a correction of the account, shall be exonerated from a charge therein admitted to exist in favor of the estate; as it is a controversy between the representative of a deceased administrator and the surviving administratrix, as to which of the two shall be charged. For it by no means follows, that if the appellee should not be held accountable for the money arising from the sale of the Artesian Springs, that the appellant, Mrs. Effinger, would likewise be discharged. The rule, therefore, above laid down is not strictly applicable to the question under consideration. The ground on which the decree, in this respect is sustained is, that the evidence before the court showed, clearly and conclusively, that the appellee’s intestate never received any part of the proceeds of the sale of the Artesian Springs. In fact, that Mrs. — 551 — Effinger, who bought that property, which was sold pursuant to a decree of the Superior Court of Chancery, never paid a cent of the purchase-money. And that the annual account, in which the administrators charge themselves with the proceeds of the sale, was made out pursuant to an agreement between Mrs. Effinger, who, as the widow of George W. Henderson, deceased, was entitled to distribution on his estate, and the appellee’s intestate, that the former should be charged with the amount of those proceeds upon the final distribution of the estate. In our opinion, the evidence fully justifies this position. If, therefore, the decree should be reversed, and the appellee be held accountable for the proceeds of the sale of the Artesian Springs, great and manifest injustice would be done. The appellee would be compelled to pay for the property bought by Mrs. Effinger; and she would, so far as the estate is concerned, be discharged from the payment of a large sum of money, which, upon every principle of equity and justice, she still owes. The account was rendered jointly by all of the administrators ; and, as the decree here can have no effect whatever upon the liability of the survivors, we cannot perceive in what possible way the parties interested in the succession can be injured. Hence, in view of all of the circumstances, we think that the decree in this respect is not erroneous. The next error complained of, is the allowance for the amount of principal and interest, paid by the appellee’s intestate, on a note made by said Henderson. The objection is based upon the grounds, first, that, the claim was barred by the Statute of Limitations, and, therefore, the administrator was not justified in paying it; and, secondly, .admitting the debt to he a valid claim against the estate, the note bore interest at the rate of six per cent., and not eight as allowed by the court. The note in question was in form a due-bill, bearing date the 7th of January, 1845. The consideration expressed upon the face of it was loaned money. There was an agreement appended to or indorsed upon it, and signed by the payee and makers in these words: “It is agreed by and us, the subscribers, that, as Jesse Heard (the payee) has furnished the money to pay a judgment of — 552 — S. M. Catchings v. Heard and Livingston, administrators of the estate of J. T. Dealing and ourselves, in the Madison Circuit Court, that he shall have what the said claim may bring when a dividend on the said estate is declared on said claim, and then the balance due said Heard on the above note will be paid; and said Heard is to hold said note until said dividend is declared.” According to the well-settled rule on the subject, the note and this agreement, constituted one instrument. In law the agreement was as much a part of the note, as if its terms had been inserted in the body of the note itself. And, regarding the note and the indorsed agreement as one instrument, it is impossible to doubt as to its true construction. Manifestly, the money was not to be paid until a dividend was declared on Hearing’s estate. The dividend was declared on Dealing's estate May the 11th, 1853. The statute did not commence to run until that time; and, as the money due on the note was paid before the December following, there was no color for the assumption that the claim was barred. The second branch of the exception is equally without foundation. The rate of interest which the note bore was fixed by the Statute of the 14th of February, 1842. The second section of that act fixed the rate of interest in this State on all contracts, except bona fide contracts for the loan of money. And the third section is in these words: “ The rate of interest hereafter on bona fide contracts for loaned money, shall be eight per centum per annum.” . This language is too plain to receive any aid from construction, as to what was the intention of the legislature. Unquestionably, it was not its purpose to fix a limit, for the conventional interest which might be agreed on by the parties, in contracts for the loan of money, but to provide that contracts of that character should bear interest, at a certain rate, which would, under the operation of the statute, attach as an incident to the contract. Hence, it is not to be controverted, that a bona fide contract for loaned money, would bear interest at the rate of eight per cent, per annum, although it contained no stipulation in regard to interest. In the settlement of the account, an allowance was made for the — 553 — costs in three suits brought against the administrator, and in which no defence was made; and this is assigned for error. In regard to suits prosecuted or defended by the representatives of deceased persons, the statute has provided that no allowance for the costs shall be made in their favor, unless the suits were prosecuted or defended on probable grounds; and that fact must be proved by the certificate of the court in which the cases were tried. But no provision is made for the case here presented; and it is left to be determined by the general principles which apply in the settlement of administration accounts. If the executor or administrator were in default, and had thereby occasioned the costs, propriety and justice require that he should have no allowance for them. As, for example, where the executor or administrator, having ample funds of the estate in his hands, permits suit to be brought upon a claim, duly authenticated, and not disputed, he should be personally chargeable with the costs of the suit, although he interposed no defence. On the other hand, if by reason of the deficiency or condition of the assets, or from any sufficient cause, it was rendered impossible, by payment of the demand, to prevent the institution of suit, it is clear that the executor or administrator should be allowed for the costs. No facts are stated in the record, from which the inference can be drawn, that the administrator, in this respect, was in default. Indeed, no such ground is taken, in support of the exception, which is sustained, solely, on the ground of the non-production of the certificate of the court in which the suits were tried, that there were probable grounds for defending them. Hence, applying the principles above stated, as there is nothing to show that the action of the court was erroneous, we are bound, by a rule of universal application, to hold it correct. It appears, that a sum of money ($2988.57), was placed with A. G-. Lancaster & Co., to the credit of the estate of said Henderson, in 1855, by the appellee’s intestate, and that, after his death, it was delivered over to the appellee; and it was contended, at the settlement of the account, that this sum should be accounted for, as money belonging to Henderson’s estate. The court ordered otherwise; and this is also assigned for error. — 554 — The facts above stated, constitute the only evidence in regard to the ownership of the money; and, giving it the utmost effect to which it can be entitled, it amounts to very feeble proof that the money belonged to Henderson’s estate. The court held, that it did not; and we are bound to presume that, from an examination of the inventory, and the account of sales returned by the administrators, and the account rendered in 1853, neither of which is before us, it satisfactorily appeared, that the estate of the appellee’s intestate, should not be held accountable for the money. Upon the settlement of the account, the sum of $3388.20, was allowed as commissions, to the appellee’s intestate, — being three per cent, upon the amount of the estate. The exception to the decree, in this respect, is not that the amount allowed as commissions was exorbitant, but that the commissions should have been divided between Mrs. Effinger and the appellee’s intestate. A sufficient answer to this objection is, that Mrs.- Effinger was not before the court for an allowance of commissions, upon either a partial or final settlement of her accounts. When she presents her accounts for settlement, and asks for an allowance of commissions, it will become the duty of the court, to award her such an amount as will be a fair compensation for her services, rendered in administering the estate. This is the last objection; and, having found no error in the proceedings, we order the decree to be affirmed.