Carroll v. Richardson

• Decision Date: 11 June 1889
• Citation: 87 Ala. 605,6 So. 342
• Parties: CARROLL v. RICHARDSON. CARROLL ET AL. v. SAME.
• Court: Alabama Supreme Court

6 So. 342

87 Ala. 605

CARROLL v. RICHARDSON.

CARROLL ET AL. v. SAME.

Supreme Court of Alabama

June 11, 1889

Appeal from chancery court, Butler county; JOHN A. FOSTER Chancellor.

Bills in equity by James Monroe Carroll against J. C. Richardson executor, to compel the payment of a specific legacy, and for the construction of the will, and by Richardson against Carroll to remove the administration into a court of equity. The first one of the cases referred to in the opinion of the court was where a legatee filed his bill before the expiration of 18 months after the qualification of an executor, to compel the executor to pay over to him at once a specific legacy left to him by the will. the other case was where a bill was filed by the executor, asking for a proper construction of the will, and praying to have the administration of the decedent's estate removed into a court of chancery. Carroll appears from an interlocutory decree overruling his several demurrers.

Tompkins, London & Troy, for appellant.

Watts & Son, for appellee.

STONE C.J.

These two suits refer to the estate of J. T. Perry, deceased. Mr. Perry left a will and codicil, each of which was proven and established as his last will and testament; and Richardson, one of the executors named in the will, qualified as such, and took upon himself the execution of the trust. The other two did not qualify. The suit stated first above was instituted probably in less than six months after the probate of the will, J. M. Carroll being the complainant. The record fail to furnish the date when either bill was filed. Whether this be so or not, it is manifest that each of the bills was filed in much less than 18 months after the probate of the will.

When a personal representative of a decedent's will is appointed and qualifies, the result is that the title to all personal effects of the estate, including choses in action, vests immediately in him, and that title relates back to and takes effect from decedent's death. 1 Brick. Dig. p. 932, §§ 262, 264; 3 Brick. Dig. p. 463, § 130. It then becomes his duty to possess himself of all personal effects, that he may pay the debts, and perform the other functions of administration. Until the expiration of 18 months after the appointment of a personal representative, the law does not impute to him a knowledge of the condition of the estate as to solvency or insolvency. Till then he cannot be coerced to pay or assent to a legacy. Code 1886, § 2192, and note. In Jackson v. Rowell, ante, 95, we said: "Eighteen months are allowed after administration granted for presenting or filing claims against decedents' estates, and a settlement cannot be enforced until after the expiration of eighteen months, (Code 1886, §§ 2134, 2192,) unless the executor or administrator becomes satisfied before that time that the estate is solvent, and so reports; in which event he may obtain an order of distribution as to the whole or any part of the property. Id. § 2191." See Upchurch v. Norsworthy, 12 Ala. 532.

There was a demurrer to Carroll's bill, which the chancellor overruled. There is no appeal from that ruling, and it neither is nor can be assigned as error. Consequently the sufficiency of that bill is not directly before us for review. Richardson answered Carroll's bill, and, under our statute, made his answer a cross-bill. To that cross-bill Carroll filed a demurrer, which the chancellor overruled. That ruling is assigned as error. A cross-bill is defensive in its nature and purpose; and, if the original bill fails the cross-bill, as a rule, has nothing to accomplish, and falls with it. We will not consider the sufficiency of the cross-bill, for, under the principles we have declared, Carroll's bill is without equity, and the demurrer to it...