Evans v. Evans

• Citation: 76 So. 95,200 Ala. 329
• Decision Date: 10 May 1917
• Docket Number: 6 Div. 378
• Parties: EVANS et al. v. EVANS et al.
• Court: Alabama Supreme Court

76 So. 95

200 Ala. 329

EVANS et al. v. EVANS et al.

6 Div. 378

Supreme Court of Alabama

May 10, 1917

Rehearing Denied June 7, 1917

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by Edward E. Evans and others against Mrs. Grace Evans and others to enforce a trust on a fund distributed by decree of the probate court. From the decree of the chancellor defendants appeal. Reversed and remanded in part, and in part affirmed.

Frank S. White & Sons and Carmichael & Winn, all of Birmingham, for appellants.

Stokely Scrivner & Dominick and Sinnott & Keene, all of Birmingham for appellees.

THOMAS J.

The purpose of this bill is to enforce a trust on the fund distributed by decree of the probate court to certain of appellants.

The primary question for determination is whether a bill in chancery may be maintained by a party injured without fault or neglect on his part to correct an error of law or of fact that has occurred in the final settlement of an estate of a decedent, and to declare a trust on the fund distributed by the final decree of the probate court, or on the proceeds thereof, where the same have not yet come into the hands of a bona fide purchaser for value without notice.

It is established that certain of the proceedings in the probate court are ex parte in nature, at least, until some one having an interest is made a party, or of his own motion becomes a party thereto; and as to such parties the proceeding is inter partes. Among these, for example, is the proceeding to establish a will (Watson v. May, 8 Ala. 177; Walker v. Jones, 23 Ala. 448; Blakey's Heirs v. Blakey's Ex'x, 33 Ala. 611; Clemens' Case, 38 Ala. 721; Leslie v. Sims, 39 Ala. 161; Reese v. Nolan, 99 Ala. 203, 13 So. 677), or the proceeding to have decreed the sale of a decedent's lands for distribution or for division (Lyons v. Hamner, 84 Ala. 197, 4 So. 26, 5 Am.St.Rep. 363; Cantelou v. Whitley, 85 Ala. 247, 4 So. 610; Jones v. Woodstock Iron Co., 95 Ala. 551, 10 So. 635; Neville v. Kenney, 125 Ala. 149, 28 So. 452, 82 Am.St.Rep. 230; Conniff v. McFarlin, 178 Ala. 160, 59 So. 472), or that to pay debts (Howell v. Hughes, 168 Ala. 460, 53 So. 105; Moore v. Cottingham, 113 Ala. 148, 20 So. 994, 59 Am.St.Rep. 100; Friedman v. Shamblin, 117 Ala. 454, 23 So. 821), or that to set aside a homestead ( Singo v. Fritz, 165 Ala. 658, 51 So. 867; Hogan v. Scott, 186 Ala. 310, 65 So. 209).

All such cases presuppose the existence of jurisdictional facts and a proper averment thereof (Duncan v. Stewart, 25 Ala. 408, 60 Am.Dec. 527; Bradley's Case, 34 Ala. 707, 73 Am.Dec. 474; Bean's Adm'r v. Chapman, 73 Ala. 145), and that the right to be heard existed (Sweeney's Case, 151 Ala. 242, 44 So. 184; Lyons v. Hamner, supra; Pennoyer v. Neff, 95 U.S. 714, 24 So. 565). For due process of law means notice, a hearing according to that notice, and a judgment entered in accordance to that notice and that hearing. That is to say, the Fourteenth Amendment to the federal Constitution guarantees that the defendant shall be given that character of notice and opportunity to be heard which is essentially due process of law. It has been held that, when this is done, the requirements of the Constitution are met, and that it is not for the Supreme Court of the United States to determine whether there has been an erroneous construction of statute or common law by the state court. Due process requires, however, that the court which assumes to determine the rights of parties shall have jurisdiction, and that notice and opportunity for hearing shall be given the parties. Subject to these fundamental conditions, which are universally prescribed in the systems of law established by civilized countries, all state laws, statutory, or judicially declared, "regulating procedure, evidence, and method of trials," have been sustained by the Supreme Court of the United States as being consistent with "due process of law." Iowa C.R. Co. v. Iowa, 160 U.S. 389, 16 Sup.Ct. 344, 40 L.Ed. 467; Twining v. New Jersey, 211 U.S. 111, 29 Sup.Ct. 14, 53 L.Ed. 97; West v. Louisiana, 194 U.S. 261, 24 Sup.Ct. 650, 48 L.Ed. 965; Standard Oil Co. v. Missouri ex rel. Hadley, 224 U.S. 270, 288, 32 Sup.Ct. 406, 56 L.Ed. 760, Ann.Cas. 1913D, 936; Vicksburg v. Henson, 231 U.S. 259, 34 Sup.Ct. 95, 58 L.Ed. 209; Nalle v. Oyster, 230 U.S. 165, 33 Sup.Ct. 1043, 57 L.Ed. 1439; Williams v. Bankhead, 9 Wall. 563, 22 L.Ed. 184; Williams v. Eggleston, 170 U.S. 304, 18 Sup.Ct. 617, 42 L.Ed. 1047; McCandless v. Pratt, 211 U.S. 437, 29 Sup.Ct. 144, 53 L.Ed. 271.

The question for decision in this case does not fall within the class of proceedings in rem; for the final settlement of any trust is essentially a proceeding in personam as to the conclusion of the property rights of the cestui que trust or the distributee.

That an administrator is a trustee for the benefit of the creditors and distributees of his intestate's estate is declared by abundant authority. Brannan v. Oliver, 2 Stew. 47, 19 Am.Dec. 39; Baker v. Rowan, 2 Stew. & P., 361; Saltmarsh v. Beene, 4 Port. 283, 30 Am.Dec. 525; McLane v. Spence, Adm'r, 6 Ala. 894; Hampton v. Shehan, 7 Ala. 297; McCartney v. Calhoun, 17 Ala. 301; Andrews v. Hobson, 23 Ala. 236; Montgomery v. Givhan, 24 Ala. 568; Calloway v. Gilmer, 36 Ala. 354; Otis, Adm'r, v. Dargan, 53 Ala. 178; Foxworth v. White, 72 Ala. 231; Humphreys v. Burleson, 72 Ala. 6; Daniel v. Stough, 73 Ala. 379; Chambers v. Chambers, 98 Ala. 454, 13 So. 674; Cottingham v. Moore, 128 Ala. 209, 30 So. 784; Thompson v. Thompson, 107 Ala. 163, 18 So. 247; Taylor v. Crook, Adm'r, 136 Ala. 373, 34 So. 905, 96 Am.St.Rep. 26; Sweeney's Case, 151 Ala. 242, 44 So. 184; Peters v. Rhodes, 157 Ala. 25, 47 So. 183; 11 R.C.L. § 6, p. 23, and authorities; Id., § 8, p. 25. And, so long as trust property can be followed, the property into which it has been converted remains subject to the trust. If one mixes trust funds with his own, the whole will be treated as trust property, "except so far as he may be able to distinguish what is his." Brooks v. Greil Bros. Co., 192 Ala. 235, 68 So. 874; Hutchinson v. National Bank, 145 Ala. 196, 41 So. 143; Nixon State Bank v. First State Bank, 180 Ala. 291, 60 So. 868.

For convenient reference the statute as amended, appearing in the Code of 1907 as section 3914, is here quoted:

"When any error of law or fact has occurred in the settlement of any estate of a decedent, to the injury of any party, without any fault or neglect on his part, such party may correct such error by bill in chancery, within two years after the final settlement thereof; and the evidence filed in the court of probate in relation to such settlement must be

received as evidence in the court of chancery, with such other evidence as may be adduced; and a failure to appeal from the decree of the probate court shall not be held to be such fault or neglect as will bar the complainant of the remedy herein provided." By section 3917 the chancery court is given the right to correct irregular sales of land under decree of the probate court, where the parties in interest have had legal notice of the proceeding in which the decree was rendered. This statutory provision was the codification of Act Nov. 3, 1870, p. 390 (Code, 1876, §§ 3840, 3841). It has never been given application in a case where the parties in interest had no legal notice that their property was to be affected by the attempted sale, and unless the lands sold at their full value, and the price was paid in full by the purchaser. Gomez v. Gomez, 155 Ala. 158, 165, 45 So. 637.

This statute, or the salient parts thereof, first found place in the miscellaneous provisions of the Code of 1852, as section 1915. its last clause was added by section 3536 of the Code of 1886. This provision has not been specifically construed, that we can find. The early cases gave to the statute a highly remedial construction. Mock's Heirs v. Steele, 34 Ala. 198, 73 Am.Dec. 455; Meadows v. Edwards, 46 Ala. 354; Monnin v. Beroujon, 51 Ala. 196. We refer to section 3914 of Code 1907.

The rule of these cases was changed by holdings to the effect that, where jurisdiction has attached, the decree of the probate court, within the sphere of that jurisdiction, is as conclusive as that of any other court of general jurisdiction, and that it is aided by the same intendments of law. Otis v. Dargan, supra; Waring v. Lewis, 53 Ala. 615; Gamble v. Jordan, 54 Ala. 432; Stabler v. Cook, 57 Ala. 22; Boswell v. Townsend, 57 Ala. 308; Jones v. Fellows, 58 Ala. 343; Bowden v. Perdue, 59 Ala. 409; Whorton v. Moragne, 62 Ala. 201; Hatchett v. Billingslea, 65 Ala. 16; Burke v. Mutch, 66 Ala. 568; Lowe v. Guice, 69 Ala. 80; Hatcher v. Dillard, 70 Ala. 343; Humphreys v. Burleson, 72 Ala. 1; Lyne's Adm'r v. Wann, 72 Ala. 43; Foxworth v. White, 72 Ala. 224; Stoudenmire v. De Bardelaben, 72 Ala. 300; Cawthorn v. Jones, 73 Ala. 82; Massey v. Modawell, 73 Ala. 421; Waldrom's Case, 76 Ala. 285; Farley v. Dunklin, 76 Ala. 530; Barclift's Case, 77 Ala. 528; Vincent v. Martin, 79 Ala. 540; Watts v. Frazer, 80 Ala. 186; Tutwiler v. Lane, 82 Ala. 456, 3 So. 104; Hall v. Pegram, 85 Ala. 522, 5 So. 209, 6 So. 612; Crumpler's Case, 85 Ala. 149, 4 So. 826; Knabe v. Rice, 106 Ala. 516, 17 So. 666; Adams v. Walsh, 190 Ala. 516, 67 So. 432; White v. Hill, 176 Ala. 480, 58 So. 444; Martinez v. Meyers, 167 Ala. 456, 52 So. 592; Id., 172 Ala. 641, 55 So. 498; Id., 181 Ala. 293, 61 So. 810; Carpenter v. Carpenter, 75 So. 472; Adams v. Walsh, 75 So. 888.

In Otis v. Dargan, supra, the bill was filed under the statute, and sought to review a settlement in the probate court, and the Chief Justice said:

"The acquittal of fault or neglect, under the Code, is indispensable, whether the error complained of is apparent on

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